<PAGE>
As filed with the Securities and Exchange Commission on September 2, 1999
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 33-0204126
(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) 652-4709
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
BURNHAM PACIFIC PROPERTIES, INC. STOCK OPTION AND INCENTIVE PLAN
AMENDED AND RESTATED AS OF MAY 6, 1997
(Full Title of the Plan)
------------------------------------
DANIEL B. PLATT
BURNHAM PACIFIC PROPERTIES, INC.
610 WEST ASH STREET, SUITE 1600
SAN DIEGO, CALIFORNIA 92101
(619) 652-4709
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
----------------------------
With copies to:
WILLIAM B. KING, P.C.
GOODWIN, PROCTER & HOAR LLP
EXCHANGE PLACE
BOSTON, MASSACHUSETTS 02109-2881
(617) 570-1000
-----------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
Title of Each Class of Amount to be Proposed Maximum Proposed Maximum Amount of
Securities Being Registered Registered (1) Offering Price Per Share Aggregate Offering Price Registration Fee
- --------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock 1,150,000 shares $11.406(3) $13,116,900 $3,646.50
$.01 par value (2) ------- ----------- --------
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<TABLE>
<S> <C>
(1) Plus such additional number of shares as may be required pursuant to
the Registrant's Stock Option and Incentive Plan in the event of a
stock dividend, reverse stock split, split-up, recapitalization or
other similar event.
(2) This registration statement also relates to the rights (the "Rights")
to purchase shares of Series B Junior Participating Cumulative
Preferred Stock of the Registrant which are attached to all shares of
the Registrant's common stock, par value $.01 per share ("Common
Stock"), outstanding as of, and issued subsequent to, July 1, 1999,
pursuant to the terms of the Registrant's Shareholder Rights Agreement,
dated June 19, 1999. Until the occurrence of certain prescribed events,
the Rights are not exercisable, are evidenced by the certificates for
Common Stock and will be transferred with and only with such stock.
(3) This estimate is made pursuant to Rule 457(c) and (h) under the
Securities Act solely for purposes of determining the registration fee
and is based upon the market value of outstanding shares of the
Registrant's Common Stock on August 31, 1999, utilizing the average of
the high and low sale prices as reported on the New York Stock
Exchange.
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
</TABLE>
<PAGE>
This Registration Statement on Form S-8 relates to 1,150,000 additional
shares of common stock, par value $.01 per share (the "Common Stock"), of
Burnham Pacific Properties, Inc. (the "Company"), which may be issued under the
Company's Stock Option and Incentive Plan, as amended and restated as of May 6,
1997, and subsequently amended on January 14, 1998 (the "Plan"). The Company
hereby incorporates by reference the contents of the Registration Statement on
Form S-8, File No. 33-10559, filed with the Securities and Exchange Commission
(the "Commission") on July 19, 1997, covering awards for 1,800,000 shares of
Common Stock, which awards have been previously granted pursuant to the Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
ITEM 1. PLAN INFORMATION.*
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.*
* Information required by Part I to be contained in the Section 10(a)
Prospectus is omitted from this Registration Statement in accordance with Rule
428 under the Securities Act of 1933 (the "Securities Act") and the Introductory
Note to Part I of Form S-8.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.
The Company hereby incorporates by reference the documents listed in (a)
through (d) below, which have been previously filed with the Commission pursuant
to the Securities Exchange Act of 1934, as amended (the "Exchange Act").
(a) The Company's annual report on Form 10-K 405 for the fiscal year
ended December 31, 1998, as amended on April 30, 1999 and June
11, 1999;
(b) The Company's quarterly reports on Form 10-Q for the fiscal
quarters ended March 31, 1999 (as amended on August 13, 1999),
and June 30, 1999;
(c) The Company's current reports on Form 8-K dated June 7, 1999,
June 19, 1999, June 24, 1999, July 30, 1999 and August 9, 1999;
(d) The description of the Company's Common Stock contained in its
Registration Statement on Form 8-B, filed with the Commission on
June 2, 1997, and the description of the Company's Rights
contained in its Registration Statement on Form 8-A, filed with
the Commission on June 22, 1999, and any amendments or reports
filed for the purpose of updating such descriptions.
2
<PAGE>
In addition, all documents subsequently filed with the Commission by the
Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of 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.
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. ("Burnham") contains such a
provision which eliminates such liability to the maximum extent permitted by
Maryland law.
The charter of Burnham 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 Burnham or of
its predecessor, Burnham Pacific Properties, Inc., a California corporation (the
"Predecessor Corporation") or (ii) any individual who, while a director of
Burnham or Predecessor Corporation and at the request of Burnham 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 Burnham 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 Burnham or Predecessor
Corporation or (b) any individual who, while a director of Burnham or
Predecessor Corporation and at the request of Burnham 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 foregoing indemnification provisions are also
embodied in separate contracts between Burnham and each of the directors and
officers of Burnham.
The MGCL requires a corporation (unless its charter provides otherwise,
which Burnham'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
3
<PAGE>
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.
The following is a complete list of exhibits filed or incorporated by
reference as part of this registration statement.
<TABLE>
<S> <C>
*5.1 Opinion of Goodwin, Procter & Hoar LLP as to the legality of the securities being registered.
*23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit 5.1 hereto).
24.1 Powers of Attorney (included on signature page of this registration statement).
99.1 Burnham Pacific Properties, Inc. -- Stock Option and Incentive Plan, as amended and restated as
of May 6, 1997.
*99.2 First Amendment, dated January 14, 1998, to Burnham Pacific
Properties, Inc. -- Stock Option and Incentive Plan, as
amended and restated as of May 6, 1997.
</TABLE>
* Filed herewith.
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 acts 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
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 a 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;
4
<PAGE>
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii)
herein do not apply if the information required to be included
in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the undersigned Registrant
pursuant to Section 13 or Section 15(d) of the Exchange Act
that are incorporated by reference 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.
(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 Securities and
Exchange Commission such indemnification is against public
policy as expressed in the Securities 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 Securities Act and will be governed by the final
adjudication of such issue.
5
<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 this 2nd day
of September, 1999.
BURNHAM PACIFIC PROPERTIES, INC.
By: /s/ J. David Martin
----------------------------------------------
Name: J. David Martin
Title: President and Chief Executive Officer
POWER OF ATTORNEY
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.
<TABLE>
<CAPTION>
SIGNATURE CAPACITY DATE
<S> <C> <C>
/s/ J. David Martin President, Chief Executive Officer September 2, 1999
- ------------------------------------- (Principal Executive Officer)
J. DAVID MARTIN and Director
/s/ Daniel B. Platt Chief Financial Officer September 2, 1999
- -------------------------------------
DANIEL B. PLATT
/s/ Marc A. Artino Director of Finance and Treasurer September 2, 1999
- ------------------------------------- (Principal Accounting Officer)
MARC A. ARTINO
/s/ Malin Burnham
- ------------------------------------- Director September 2, 1999
MALIN BURNHAM
/s/ James D. Harper, Jr.
- ------------------------------------- Director September 2, 1999
JAMES D. HARPER, JR.
/s/ James D. Klingbeil
- ------------------------------------- Director September 2, 1999
JAMES D. KLINGBEIL
/s/ Nina B. Matis
- ------------------------------------- Director September 2, 1999
NINA B. MATIS
/s/ Donne P. Moen
- ------------------------------------- Director September 2, 1999
DONNE P. MOEN
/s/ Philip S. Schlein
- ------------------------------------- Director September 2, 1999
PHILIP S. SCHLEIN
/s/ Robin Wolaner
- ------------------------------------- Director September 2, 1999
ROBIN WOLANER
</TABLE>
S-1
<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 Deloitte & Touche LLP
23.2 Consent of Goodwin, Procter & Hoar LLP (included in Exhibit
5.1 hereto).
24.1 Powers of Attorney (included on signature page of this
registration statement).
99.1 Burnham Pacific Properties, Inc. -- Stock Option and Incentive
Plan, as amended and restated as of May 6, 1997 (incorporated
by reference to Appendix D of the Company's proxy statement
dated March 31, 1997 with respect to the Company's annual
meeting of stockholders on May 6, 1997.
*99.2 First Amendment, dated January 14, 1998, to Burnham Pacific
Properties, Inc. -- Stock Option and Incentive Plan, as
amended and restated as of May 6, 1997.
</TABLE>
* Filed herewith.
S-1
<PAGE>
Exhibit 5.1
September 2, 1999
Burnham Pacific Properties, Inc.
610 West Ash Street, Suite 1600
San Diego, California, 92101
Ladies and Gentlemen:
This opinion is furnished in connection with the registration on Form
S-8, pursuant to the Securities Act of 1933, as amended (the "Act"), of
1,150,000 shares of Common Stock, par value $.01 per share (the "Shares"), of
Burnham Pacific Properties, Inc., a Maryland corporation (the "Company"), which
may be issued upon the exercise of options or other awards under the Plan
referred to below.
In connection with rendering this opinion, we have examined the
Certificate of Incorporation and ByLaws of the Company, each as amended to date;
such records of the corporate proceedings of the Company as we deemed material;
a registration statement on Form S-8 under the Act relating to the Shares (the
"Registration Statement"); the Burnham Pacific Properties, Inc. Stock Option and
Incentive Plan as amended to date (the "Plan"); and such other certificates,
receipts, records and documents as we considered necessary for the purposes of
this opinion. In our examination, we have assumed the genuineness of all
signatures, the legal capacity of natural persons, the authenticity of all
documents submitted to us as certified, photostatic or facsimile copies, the
authenticity of the originals of such copies and the authenticity of telephonic
confirmations of public officials and others. As to facts material to our
opinion, we have relied upon certificates or telephonic confirmations of public
officials and certificates, documents, statements and other information of the
Company or representatives or officers thereof.
We are attorneys admitted to practice in The Commonwealth of
Massachusetts. We express no opinion concerning the laws of any jurisdictions
other than the laws of the United States of America and The Commonwealth of
Massachusetts and the General Corporation Law of the State of Maryland.
Based upon the foregoing, we are of the opinion that when the Shares
have been issued and paid for in accordance with the terms of the Plan, the
Shares will be validly issued, fully paid and nonassessable shares of Common
Stock.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours
GOODWIN, PROCTER & HOAR LLP
S-2
<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 23, 1999 (March 9, 1999 as to paragraph 4 of Note 18) appearing in
the Annual Report on Form 10-K 405, as amended on April 30, 1999 and June 11,
1999, of Burnham Pacific Properties, Inc. for the year ended December 31,
1998.
/s/ Deloitte & Touche LLP
San Diego, California
August 30, 1999
S-3
<PAGE>
Exhibit 99.2
FIRST AMENDMENT OF THE BURNHAM PACIFIC PROPERTIES, INC.
STOCK OPTION AND INCENTIVE PLAN,
AMENDED AND RESTATED AS OF MAY 6, 1997
This First Amendment of the Burnham Pacific Properties, Inc. Stock
Option and Incentive Plan, amended and restated as of May 6, 1997 (the "Plan"),
was approved by resolution of the Board of Directors of Burnham Pacific
Properties, Inc. (the "Corporation") on January 14, 1998 and subsequently
approved by the requisite vote of the stockholders entitled to vote thereon at
the 1998 Annual Meeting of Stockholders of the Corporation held on May 11, 1998.
WHEREAS, the Burnham Pacific Properties, Inc Stock Option and Incentive
Plan, as amended and restated on May 6, 1997 (the "Plan"), was adopted by the
Board of Directors and the stockholders of Burnham Pacific Properties, Inc. (the
"Corporation") as a performance incentive for officers, employees and Directors
of the Corporation;
WHEREAS, Section 3(a) of the Plan provides that the total number of
shares of the Corporation's common stock, no par value (the "Common Stock"),
available for issuance under the Plan shall not exceed an aggregate of 1,800,000
shares of Common Stock;
WHEREAS, the Board of Directors of the Corporation believes that the
number of shares of Common Stock remaining available for issuance under the Plan
has become insufficient for the Corporation's current and anticipated future
needs;
WHEREAS, Section 16 of the Plan provides that the Board of Directors of
the Corporation may amend the Plan at any time, subject to certain conditions
set forth therein; and
WHEREAS, the Board of Directors of the Corporation has determined that
it is in the best interests of the Corporation to amend the Plan to provide that
an additional 1,150,000 shares of Common Stock be made available for issuance
under the Plan.
NOW, THEREFORE:
Section 3 of the Plan is hereby amended by deleting Section 3(a) in its
entirety and inserting the following in lieu thereof:
"(a) The stock subject to Awards that may be granted under the
Plan shall be shares of the Corporation's authorized but unissued common stock,
par value $.01 per share (the "Common Stock"). The total number of shares of
Common Stock that shall be subject to Awards under this Plan shall not exceed
2,950,000 shares, subject to adjustment as provided in Section 12 hereof; and
the number of shares for which Awards may be granted in any one calendar year to
any one individual shall not exceed 300,000."
IN WITNESS WHEREOF, this First Amendment to the Plan has been adopted by
the Board of Directors of the Corporation as of January 14, 1998, and was
submitted for approval by the Corporation's stockholders at the Corporation's
1998 Annual Meeting of Stockholders of the Corporation held on May 11, 1998.
S-4
