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Exhibit 10.1
August 13, 2000
Burnham Pacific Properties, Inc. Westbrook Burnham Holdings, Inc.
100 Bush Street, 24th Floor Westbrook Burnham Co-Holdings, Inc.
San Francisco, CA 94104 265 Franklin Street, suite 1900
Boston, MA 02110
Blackacre SMC Master Holdings, L.P.
Blackacre SMC II Holdings, LLC
450 Park Avenue New York, NY 10022
This letter confirms the discussions that we have had to date relating
to the proposed liquidation of Burnham Pacific Properties, Inc. (the "Company"),
as more fully described in the Summary of Agreements attached hereto as Exhibit
A, and documents the intention of each of the undersigned to negotiate in good
faith, from the date hereof until August 24, 2000, definitive documentation
regarding the agreements set forth in the Summary of Agreements.
The parties hereto hereby agree that the Company shall issue, not later
than August 15, 2000, a press release describing the Company's proposed
liquidation and agreement in principle with the other parties hereto, which
shall be as attached hereto as Exhibit B or in other form acceptable to each of
the parties hereto.
This letter and the Summary of Agreements are intended to, and will be
construed only as, summarizing our discussions to the date hereof and do not in
any way whatsoever constitute, nor are they intended to be, (a) a legally
binding agreement or (b) a legally binding agreement to enter into an agreement,
except as to the obligation to issue the press release as referenced above.
No amendment or modification of this letter agreement shall be binding
upon any party unless approved in writing by such party. This letter agreement
shall be governed by and construed in accordance with the laws of the State of
New York, without giving effect to applicable principles of conflict of laws.
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BURNHAM PACIFIC PROPERTIES, INC.
By: /s/ SCOTT C. VERGES
------------------------------------------
Name: Scott C. Verges
Title: Secretary
WESTBROOK BURNHAM HOLDINGS, L.L.C.
AND WESTBROOK BURNHAM
CO-HOLDINGS, L.L.C.,
By: /s/ A.C. GREER
------------------------------------------
Name: A.C. Greer
Title: Authorized Signatory
BLACKACRE SMC MASTER HOLDINGS, L.P.
AND BLACKACRE SMC II HOLDINGS, LLC,
By: Blackacre Capital Group L.P.
By: Blackacre Capital Management Corp.,
its general partner
By: /s/ RON KRAVIT
------------------------------------------
Name: Ron Kravit
Title: Managing Director
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EXHIBIT A
SUMMARY OF AGREEMENTS
1. The bylaws of Burnham Pacific Properties, Inc. (the "Company") shall
be amended to postpone the deadline for timely notice of board nominations or
shareholder proposals for ten (10) days from the deadline that is currently in
effect, so that the new effective notice date will be August 29, 2000. Such
amendment shall be confirmed by a certificate of the Secretary of the
Corporation and an opinion of counsel satisfactory to Westbrook Burnham
Holdings, L.L.C., Westbrook Burnham Co-Holdings L.L.C., Blackacre SMC Master
Holdings, L.P. and Blackacre SMC II Holdings, LLC (collectively, the "Preferred
Shareholders").
2. The board of directors of the Company (the "Board") shall accept the
resignation of J. David Martin as Director and as President and Chief Executive
Officer, with severance package payments not to exceed an aggregate of $1.575
million paid over three years, except as accelerated in a change of control, and
COBRA benefits at a total cost to the Company of approximately $28,000. The
Board shall appoint Scott Verges as the interim Chief Executive Officer of the
Company, to serve at least until the next annual meeting of the Company's
shareholders. All meetings of the Board will be open to the exercise by the
Preferred Shareholders of observation rights, and the Board will not exclude
Preferred Shareholders under any claim of executive session; PROVIDED that the
Board may exclude the Preferred Shareholders solely from that portion of such
meetings where (a) arrangements between the Company, on the one hand, and the
Preferred Shareholders, on the other hand, or specific actions with respect to
the Preferred Shareholders are being discussed or (b) the presence of the
Company's counsel is required in order to counsel or advise the Board on pending
or ongoing litigation and the presence of the Preferred Shareholders would
eliminate the attorney-client privilege between the Company and such counsel.
3. Subject to applicable legal and contractual limitations, the Company
shall use its reasonable efforts to negotiate decreased severance packages for
senior management reasonably acceptable to the Preferred Shareholders and to
reduce staff as appropriate for liquidation.
4. [Intentionally omitted.]
5. The Board shall propose a plan of liquidation (the "Plan") at the
next shareholder meeting of the Company which shall occur no later than November
14, 2000, unless (a) the Company has been enjoined by a court of competent
jurisdiction from holding such meeting and is contesting such injunction
diligently and in good faith or (b) the Board makes a good faith determination
(such determination to be supported by an opinion of Goodwin, Procter & Hoar,
LLP, or other counsel reasonably acceptable to the Preferred Shareholders) that,
in order to comply with the Board's fiduciary or other duties owed to the
Company's shareholders, the Board or the Company's shareholders need additional
time to
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consider a bona fide proposal for the sale of all or substantially all of the
Company's assets, merger, reorganization or other comparable transaction, in
which case such meeting shall be delayed until the Company is no longer so
enjoined or until the Board has satisfied its fiduciary obligations, as the case
may be. No such delay shall affect any exercise of rights on or after November
14, 2000. The Board and the Preferred Shareholders will work jointly to prepare
such a plan of liquidation, or a summary of such a plan, to be attached to and
incorporated by reference in the definitive agreement between the Company and
the Preferred Shareholders.
6. [Intentionally omitted].
7. The Articles Supplementary (the "Articles") relating to the Series
1997-A Convertible Preferred Stock (the "Preferred Stock") shall be amended to
provide that if the Plan is not approved by the Company's shareholders prior to
November 14, 2000, then the Preferred Shareholders shall then and thereafter be
entitled to elect a Change of Control Preference (as defined in the Articles).
The Preferred Shareholders shall agree not to reinstate their election of Change
of Control Preference which is currently suspended, unless approval of the Plan
does not occur as aforesaid. The Preferred Shareholders shall further agree that
from the date hereof until November 14, 2000, they shall not deliver an election
of Change of Control relating to the Plan or any proposal other than the Plan
unless such other proposal is supported by the Board or unless approval of the
Plan does not occur as aforesaid.
8. The Articles shall also be amended to provide that the Preferred
Stock shall be redeemable at the option of the Preferred Shareholders on or
after September 30, 2001 at a price equal to the Change of Control Preference.
9. In lieu of amending the Articles Supplementary, the Company may
offer to issue to the Preferred Shareholders, in exchange for their Preferred
Stock, a new series of preferred stock that has the same terms as the Preferred
Stock as amended by the amendments described herein.
10. If the Plan is approved by the requisite number of the Company's
shareholders, the Preferred Shareholders will agree to not deliver a Change of
Control Election based on any Change of Control resulting from the Plan through
March 31, 2001, provided that (a) the Preferred Shareholders shall have the
right to approve any dividends that the Company pays to its common shareholders
through March 31, 2001, other than quarterly dividends not exceeding current
quarterly dividends paid out of operating cash (the definition of which will be
agreed upon by the Company and the Preferred Shareholders in the definitive
agreement) of the Company, and which may only be paid if the Company is current
in its dividends to the Preferred Shareholders, and (b) after March 31, 2001,
the Preferred Shareholders shall be entitled to deliver a Change of Control
Election with respect to the Plan. Subject to paragraph 7 above and this
paragraph 10, the Preferred Shareholders shall retain the right to deliver a
Change of Control Election, which shall not be suspended, with respect to any
event
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occurring after the date hereof other than with respect to the Plan or any event
consistent with or pursuant to the Plan.
11. The definitive agreement between the Company and the Preferred
Shareholders shall have attached to it a list of individuals acceptable to the
Preferred Shareholders for election to the Board at the Company's next annual
shareholders' meeting. The Board's nominees for directors to be elected at such
meeting shall come from the individuals included on such list. In the definitive
agreement, the Preferred Shareholders shall agree to vote at such meeting all
their shares for the election of such nominees, for the Plan and against any
other plan of liquidation which has not been approved by the Board.
12. The definitive agreement will also provide that Blackacre SMC
Master Holdings, L.P. and Blackacre SMC II Holdings, LLC shall convert all of
their Preferred OP units to the same series of Preferred Stock held or to be
held by Westbrook Burnham Holdings, L.L.C. and Westbrook Burnham Co-Holdings
L.L.C., subject to any reduction in the number of converted Preferred OP units
required so as not to violate applicable NYSE listing regulations. If any such
reduction is necessary, the Company agrees to amend the term of the Preferred OP
units to provide for the same economic benefits to which the Preferred Stock is
entitled to under the foregoing agreements.
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EXHIBIT B
PRESS RELEASE
CONTACT:
Daniel B. Platt, Chief Financial Officer
Tel: 619-652-4700
Fax: 619-652-4711
[email protected]
BURNHAM PACIFIC ANNOUNCES PROPOSED LIQUIDATION
SAN DIEGO, August 15, 2000 -- Burnham Pacific Properties, Inc.
(NYSE:BPP) today announced that its Board of Directors has completed its
extensive review of the Company's strategic alternatives and has concluded that
it is in the best interests of the Company's stockholders to liquidate the
Company on an orderly basis.
In the fall of 1999, the Company retained Goldman, Sachs & Co. to
assist the Company's Board of Directors in a review of strategic alternatives.
Proposals to acquire the Company were solicited from numerous parties. After a
thorough review, the Board of Directors determined that the bid prices and terms
were not adequate. In addition, the Board of Directors considered and determined
not to proceed with a proposal to reorganize the Company.
The Board of Directors intends to adopt a final plan of liquidation, in
time for the plan to be submitted to and considered by the Company's
stockholders at the upcoming annual stockholders meeting, currently scheduled
for October 18, 2000. The Board of Directors plans to have the Company retain a
third party to oversee and manage the liquidation process, and last week the
Company began discussions with one such qualified third party. In this regard,
the Company is soliciting proposals from a select number of additional qualified
firms to manage the liquidation process. The Board of Directors will implement,
and instruct the liquidation manager to implement, substantial reductions in
operating expenses commencing in the fourth quarter of 2000.
The Company also announced that it has reached an agreement in
principle with affiliates of Westbrook and Blackacre, the Company's two largest
preferred equityholders, to support the Board of Director's decision to develop
a plan of liquidation and to support an agreement with a third party to oversee
a plan of liquidation. The Company also expects to reach a definitive agreement
with Westbrook and Blackacre shortly. At Westbrook's and Blackacre's request,
the Board of Directors has amended the Bylaws of the Company to provide that
stockholder proposals and nominations for directors for the Company's annual
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meeting must be presented to the Company not later than August 29, 2000, rather
than the current August 19, 2000 deadline.
Additionally, in anticipation of the proposed liquidation, J. David
Martin has resigned as chief executive officer and as a Director of the Company.
Scott C. Verges, the Company's chief administrative officer and general counsel,
will serve as the Company's interim chief executive officer.
Burnham Pacific is a real estate investment trust (REIT) that focuses
on value-added retail real estate opportunities throughout the United States.
The Company makes available on a quarterly basis supplemental information that
includes property and corporate level detail which is available upon request.
More information on Burnham Pacific may be found on the Company's web site at
http://www.burnhampacific.com or by calling 800-462-5181.
This news release contains "forward-looking statements" that predict or
indicate future events or trends or that do not relate to historical matters.
There are a number of important factors that could cause actual events to differ
materially from those indicated by such forward-looking statements. These
factors include, but are not limited to, uncertainties in the strategic
alternative process, the validity of the election of the Change of Control
Preference by certain preferred stockholders and the impact of that election on
the payment of future dividends, the ability to consummate a binding agreement
with a third party with respect to the liquidation process, and the ability to
consummate an agreement with the Company's preferred stockholders regarding
their support for a plan of liquidation, as well as other factors discussed in
the Company's periodic reports filed with the Securities and Exchange
Commission, including without limitation the risk factors that were disclosed in
our Form 10-K which was filed with the SEC on March 30, 2000. You should be
aware that the risk factors contained in that Form 10-K may not be exhaustive.
Therefore, we recommend that you read the information in that Form 10-K together
with other reports and documents that we file with the SEC from time to time,
including our Forms 10-K, 10-Q and 8-K which may supplement, modify, supersede
or update those risk factors.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
Burnham Pacific Properties, Inc. plans to mail a proxy statement to its
stockholders containing information about the plan of liquidation. Investors and
securityholders of Burnham Pacific Properties, Inc. are advised to read the
proxy statement carefully when it becomes available because it will contain
important information about the plan of liquidation, the persons soliciting
proxies related to the liquidation, their interests in the liquidation, and
related matters. Investors and securityholders may obtain free copies of the
proxy statement (when available) and other documents filed by Burnham at the
Securities and Exchange Commission's website at http://www.sec.gov.
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Free copies of the proxy statement will also be available from Burnham
by directing such requests to the attention of Mr. Daniel B. Platt, Chief
Financial Officer, Burnham Pacific Properties, Inc., 110 West A Street, San
Diego, California 92101, telephone (619) 652-4700.
INFORMATION CONCERNING PARTICIPANTS
Burnham, its directors, executive officers and certain other members of
management and employees may be soliciting proxies from Burnham stockholders in
favor of the plan of liquidation. As of the date of this communication, the
officers and directors of Burnham each beneficially owned less than 1% of the
outstanding common stock of Burnham, other than Malin Burnham who beneficially
owns approximately 1.65%.
-- END --
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