SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 6)*
Burnham Pacific Properties, Inc.
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(Name of Issuer)
Common Stock, par value $.01 per share
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(Title of Class of Securities)
12232C108
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(CUSIP Number)
with a copy to:
Stephen Feinberg Robert G. Minion, Esq.
450 Park Avenue Lowenstein Sandler PC
28th Floor 65 Livingston Avenue
New York, New York 10022 Roseland, New Jersey 07068
(212) 421-2600 (973) 597-2424
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(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
November 29, 2000
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(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule l3G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Section 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box: [ ]
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7(b) for
other parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
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Cusip No. 12232C108
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1) Names of Reporting Persons/I.R.S. Identification Nos. of Above Persons
(entities only):
Stephen Feinberg
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2) Check the Appropriate Box if a Member of a Group (See Instructions):
(a) Not
(b) Applicable
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3) SEC Use Only
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4) Source of Funds (See Instructions): WC
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5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d)
or 2(e):
Not Applicable
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6) Citizenship or Place of Organization: United States
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Number of 7) Sole Voting Power: *
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Shares Beneficially 8) Shared Voting Power: *
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Owned by
Each Reporting 9) Sole Dispositive Power: *
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Person With: 10) Shared Dispositive Power: *
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11) Aggregate Amount Beneficially Owned by Each Reporting Person: 2,601,626*
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12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
(See Instructions): Not Applicable
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13) Percent of Class Represented by Amount in Row (11): 7.4%*
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14) Type of Reporting Person (See Instructions): IA, IN
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* Blackacre SMC Master Holdings, LLC ("Blackacre SMC") and Blackacre Funding LLC
("Blackacre Funding") are the holders of 400,000 and 1,200,000 shares,
respectively, of Series 2000-C Convertible Preferred Stock, par value $.01 per
share (the "Series C Preferred Stock"), of Burnham Pacific Properties, Inc. (the
"Company"). Pursuant to the Company's Articles Supplementary designating the
Series C Preferred Stock, the shares of the Series C Preferred Stock are
convertible, at the option of the holder thereof, into shares of the Common
Stock, par value $.01 per share, of the Company (the "Common Stock"). Based upon
Blackacre SMC's holdings of 400,000 shares of the Series C Preferred Stock,
Blackacre SMC presently has the right to convert such 400,000 shares of Series C
Preferred Stock into 650,406.5 shares of Common Stock and, based upon Blackacre
Funding's holdings of 1,200,000 shares of the Series C Preferred Stock,
Blackacre Funding presently has the right to convert such 1,200,000 shares of
Series C Preferred Stock into 1,951,219.5 shares of Common Stock. Stephen
Feinberg possesses sole power to vote and direct the disposition of all
securities of the Company owned by Blackacre SMC and Blackacre Funding,
respectively.
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Item 2. Identity and Background.
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The person filing this statement is Stephen Feinberg, whose business
address is 450 Park Avenue, 28th Floor, New York, New York 10022. Mr. Feinberg
serves as the investment manager for each of Blackacre SMC Master Holdings, LLC
("Blackacre SMC") and Blackacre Funding, LLC ("Blackacre Funding"). Each of
Blackacre SMC and Blackacre Funding is engaged in the investment in personal
property of all kinds, including but not limited to capital stock, depository
receipts, investment companies, mutual funds, subscriptions, warrants, bonds,
notes, debentures, options and other securities of whatever kind and nature.
Mr. Feinberg has never been convicted in any criminal proceeding, nor
has he been a party to any civil proceeding commenced before a judicial or
administrative body of competent jurisdiction as a result of which he was or is
now subject to a judgment, decree or final order enjoining future violations of,
or prohibiting or mandating activities subject to, federal or state securities
laws or finding any violation with respect to such laws. Mr. Feinberg is a
citizen of the United States.
Item 3. Source and Amount of Funds or Other Consideration.
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Blackacre SMC is the holder of 400,000 shares of Series 2000-C
Convertible Preferred Stock, par value $.01 per share (the "Series C Preferred
Stock") of the Company. Pursuant to the Company's Articles Supplementary to the
Articles of Amendment and Restatement of the Company designating the Series C
Preferred Stock (the "Articles Supplementary"), the Series C Preferred Stock is
convertible, at the option of the holder thereof, into shares of Common Stock of
the Company, par value $.01 per share (the "Common Stock"). Based upon Blackacre
SMC's holdings of 400,000 shares of the Series C Preferred Stock, Blackacre SMC
presently has the right to convert such 400,000 shares of Series C Preferred
Stock into 650,406.5 shares of the Common Stock.
Blackacre Funding is the holder of 1,200,000 shares of Series C
Preferred Stock. Based upon Blackacre Funding's holdings of 1,200,000 shares of
the Series C Preferred Stock, Blackacre Funding presently has the right to
convert such 1,200,000 shares of Series C Preferred Stock into 1,951,219.5
shares of the Common Stock.
Blackacre SMC acquired the shares of Series C Preferred Stock held by
it pursuant to the terms of (i) the Thirteenth Amendment (the "Thirteenth
Amendment") to Agreement of Limited Partnership of Burnham Pacific Operating
Partnership, L.P. (the "Partnership"), (ii) the Notice of Redemption provided by
Blackacre to the Company and the Partnership (the "Redemption Notice"), (iii)
the Assumption of Redemption Right between the Partnership and the Company (the
"Redemption Assumption") and (iv) the Exchange Agreement (as defined in, and
described in, Item 6 below). Pursuant to the terms of the Thirteenth Amendment,
the Redemption Notice and the Redemption Assumption, Blackacre SMC elected its
right to have the Partnership redeem all of the 1,599,990 Units of the
Partnership held by it in exchange for 1,599,990 shares of Series 1997-A
Convertible Preferred Stock of the Company. Pursuant to the Exchange Agreement,
Blackacre SMC exchanged the 1,600,000 shares of Series 1997-A Convertible
Preferred Stock of the Company held by it (the 1,599,990 shares of Series 1997-A
Convertible Preferred Stock received by it pursuant to the Units exchange plus
the 10 shares of Series 1997-A Convertible Preferred Stock previously held by
it) for 1,600,000 shares of Series C Preferred Stock.
Blackacre Funding acquired the shares of Series C Preferred Stock held
by it by a transfer from Blackacre SMC.
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All funds or other consideration used to purchase or acquire
securities of the Company on behalf of Blackacre SMC and Blackacre Funding came
directly from the assets of Blackacre SMC and Blackacre Funding, respectively.
Item 5. Interest in Securities of the Issuer.
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Based upon information set forth in the Company's Quarterly Report on
Form 10-Q/A for the quarterly period ended September 30, 2000, as of November
10, 2000, there were issued and outstanding 32,329,622 shares of Common Stock.
Blackacre SMC is the holder of 400,000 shares of Series C Preferred Stock, which
are presently convertible into 650,406.5 shares of Common Stock, and Blackacre
Funding is the holder of 1,200,000 shares of the Series C Preferred Stock, which
are presently convertible into 1,951,219.5 shares of Common Stock. Stephen
Feinberg possesses sole power to vote and direct the disposition of all
securities of the Company owned by Blackacre SMC and Blackacre Funding,
respectively. Pursuant to Reg. Section 240.13d-3, Mr. Feinberg is therefore
deemed to beneficially own 7.4% of the shares of Common Stock deemed issued and
outstanding.
During the past sixty days, there were no transactions in shares of
Common Stock, or any securities directly or indirectly convertible into or
exchangeable for shares of Common Stock, by Stephen Feinberg or any person or
entity controlled by him or any person or entity for which he possesses voting
or investment control over the securities thereof, except as described in this
Schedule 13D.
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
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Blackacre Funding (and certain other entities for which Stephen
Feinberg, directly or indirectly, serves as investment adviser) is a party to a
Loan and Security Agreement, dated as of November 21, 2000, with Greenwich
Capital Financial Products, Inc. ("GCFP") (the Loan Agreement") pursuant to
which, among other things, Blackacre Funding, in consideration for certain
financing to be provided by GCFP to Blackacre Funding (and such other parties),
agreed to pledge to GCFP the 1,200,000 shares of Series C Preferred Stock held
by Blackacre Funding. The Loan Agreement contains certain covenants of Blackacre
Funding with respect to such shares of Series C Preferred Stock pledged by
Blackacre Funding, including, among others, covenants to not, without GCFP's
prior consent, transfer such shares or enter into certain agreements or
restrictions with respect to such shares.
In connection with the Loan Agreement and the pledge of the 1,200,000
shares of Series C Preferred Stock held by Blackacre Funding in favor of GCFP
described above, Blackacre Funding entered into a Master Collateral Assignment
in favor of GCFP pursuant to which, among other things, Blackacre Funding
granted to and pledged to GCFP a first priority lien on and security interest in
such shares.
Pursuant to the transfer from Blackacre SMC to Blackacre Funding of
the 1,200,000 shares of the Series C Preferred Stock, Blackacre Funding agreed
to be bound by certain obligations of Blackacre SMC with respect to such shares,
including those set forth below in this Item 6. In addition, in connection with
the transfer from Blackacre SMC to Blackacre Funding of the 1,200,000 shares of
the Series C Preferred Stock, the Company confirmed for Blackacre SMC, Blackacre
Funding and GCFP that certain restrictions set forth in the Company's Articles
<PAGE>
of Amendment and Restatement shall not apply to such 1,200,000 shares and the
Company confirmed for Blackacre SMC and Blackacre Funding that certain rights of
Blackacre SMC under the Exchange Agreement shall remain in full force and effect
notwithstanding the transfer of such 1,200,000 shares by Blackacre SMC to
Blackacre Funding
Pursuant to an Amended and Restated Participation Agreement, dated as
of November 28, 2000, by and among, among others, Blackacre SMC and an unrelated
third party (the "Participation Agreement"), Blackacre Funding, among other
things, transferred to an unrelated third party one hundred percent (100%) of
the profits, losses, distributions and items of income, gain, loss, deduction
and credit with respect to the 400,000 shares of Series C Preferred Stock held
by Blackacre Funding. Pursuant to the Participation Agreement, Blackacre Funding
retained all voting, decisionmaking, management and other rights with respect to
such shares, and with respect to all agreements with the Company or other third
parties relating to such shares, except for certain limited rights granted to
such unrelated third party in connection with such party's economic interest in
such shares.
As previously described in Amendment No. 5 ("Amendment No. 5") to this
Schedule 13D filed by Stephen Feinberg, on September 11, 2000, Westbrook,
Blackacre SMC and the Company entered into an amendment (the "Amendment") to the
Exchange Agreement pursuant to which, among other things, (i) Westbrook and
Blackacre SMC consented to the Company's execution of the Liquidation Agreement
and the Schottenstein Agreement (as such terms are defined in the Amendment),
(ii) Westbrook and Blackacre SMC consented to the payment of dividends on the
Company's Common Stock subject to certain conditions precedent, (iii) the
Company agreed to modify its Shareholder Rights Agreement, dated as of June 19,
1999, by and between the Company and First Chicago Trust Company of New York, to
permit increased ownership of the Company's Common Stock by Westbrook and
Blackacre SMC and certain other shareholders and (iv) the Company agreed that,
on and after the date on which no shares of Series C Preferred Stock are
outstanding, it will increase by one the size of its board of directors, elect a
specified person to fill the vacancy created thereby and thereafter annually
nominate such specified person for election to the Company's board of directors.
As previously described in Amendment No. 5, on August 31, 2000,
Blackacre SMC, Westbrook, the Company and the Partnership entered into an
Exchange Agreement (the "Exchange Agreement") pursuant to which, among other
things, Blackacre SMC agreed to exchange (the "Exchange") the shares of the
Series 1997-A Convertible Preferred Stock of the Company held by it for shares
of newly-issued Series C Preferred Stock. The terms of the Series C Preferred
Stock are set forth in the Articles Supplementary. The Exchange Agreement
includes, in addition to the terms of the Exchange, (i) numerous covenants of
the Company which the Company must perform at all times that any shares of the
Series C Preferred Stock remain outstanding (including but not limited to
covenants with respect to (a) the approval of the plan of liquidation of the
Company, (b) the nomination and approval of certain persons as members of the
board of directors of the Company, (c) the approval of certain matters relating
to current and former executive officers of the Company, (d) the closure of
certain of the Company offices, (e) the granting to the holders of the Series C
Preferred Stock approval rights with respect to certain matters involving the
Company, (f) the determination of accrued distributions and accrued dividends
owing to each of Blackacre SMC and Westbrook, (g) certain registration rights
granted to Blackacre SMC and Westbrook and (h) the distribution of liquidation
proceeds and various other matters relating to the plan of liquidation), (ii)
certain covenants of Blackacre SMC and Westbrook (including but not limited to
covenants with respect to (a) Blackacre SMC and Westbrook not reinstating their
election of a Change of Control Preference (as defined in the Articles
Supplementary) or otherwise delivering a notice of election of a Change of
Control Preference unless certain conditions are satisfied and (b) Blackacre SMC
<PAGE>
and Westbrook voting all voting securities of the Company held by them in favor
of the Company's plan of liquidation and for certain persons nominated to serve
on the board of directors of the Company) and (iii) certain provisions granting
to Blackacre SMC and Westbrook benefits accorded pursuant to the terms of the
Stock Purchase Agreement, dated as of December 5, 1997, by and among the
Company, the Partnership and Westbrook (the "1997 Stock Purchase Agreement") and
amending the 1997 Stock Purchase Agreement to effect such provisions.
As previously described in Amendment No. 5, on August 31, 2000, the
Company, the Partnership, Blackacre SMC, Westbrook and certain other parties
entered into the Thirteenth Amendment described in Item 3 above.
As previously described in Amendment No. 5, on August 31, 2000,
Blackacre SMC delivered to the Company and the Partnership the Redemption Notice
described in Item 3 above, and the Company and the Partnership entered into the
Redemption Assumption described in Item 3 above.
As previously described in Amendment No. 5, Blackacre SMC is a party
to an Agreement to Contribute, dated as of December 5, 1997, with, among other
parties, the Company, which provides, among other things, that Blackacre SMC and
certain other parties have the right, in certain circumstances, to acquire
additional Units, shares of Preferred Stock and/or shares of Common Stock.
As previously described in Amendment No. 5, the Company and Blackacre
SMC, among others, are party to a Registration Rights Agreement, dated as of
December 31, 1997.
As previously described in Amendment No. 5, Blackacre SMC and
Westbrook have had certain discussions between them with respect to the
possibility that they may enter into a voting agreement or similar agreement,
the terms of which would provide, among other things, that, in certain
circumstances, Blackacre SMC and Westbrook would, in their capacities as holders
of shares of the Series C Preferred Stock, jointly consent to certain matters
involving the Company, jointly vote, and/or jointly refrain from voting the
shares of the Series C Preferred Stock held by them, based upon certain factors
that they may mutually determine. No such agreement has been entered into as of
this time.
No other contracts, arrangements, understandings or similar
relationships exist with respect to the securities of the Company between
Stephen Feinberg, Blackacre SMC and/or Blackacre Funding and any person or
entity.
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Signature
After reasonable inquiry and to the best of the undersigned's
knowledge and belief, the undersigned hereby certifies that the information set
forth in this statement is true, complete and correct.
December 9, 2000
/s/ Stephen Feinberg
Stephen Feinberg, in his capacity as
the investment manager for Blackacre
SMC Master Holdings, LLC and
Blackacre Funding LLC
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE
FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
