SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
SCHEDULE l3D
Under the Securities Exchange Act of 1934
(Amendment No. 5)*
Burnham Pacific Properties, Inc.
--------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $.01 per share
--------------------------------------------------------------------------------
(Title of Class of Securities)
12232C108
--------------------------------------------------------------------------------
(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
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Persons
Authorized to Receive Notices and Communications)
September 11, 2000
--------------------------------------------------------------------------------
(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 Sections 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).
<PAGE>
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect
to Securities of the Issuer.
----------------------------------------------------------------------
On September 11, 2000, Westbrook, Blackacre and the Company entered
into an amendment (the "Amendment") to the Exchange Agreement (as defined below)
pursuant to which, among other things, (i) Westbrook and Blackacre 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 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 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.
On August 31, 2000, Blackacre, Westbrook, the Company and the
Partnership entered into an Exchange Agreement (the "Exchange Agreement")
pursuant to which, among other things, Blackacre 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 and Westbrook,
(g) certain registration rights granted to Blackacre and Westbrook and (h) the
distribution of liquidation proceeds and various other matters relating to the
plan of liquidation), (ii) certain covenants of Blackacre and Westbrook
(including but not limited to covenants with respect to (a) Blackacre 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 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 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.
<PAGE>
On August 31, 2000, the Company, the Partnership, Blackacre, Westbrook
and certain other parties entered into the Thirteenth Amendment described in
Item 3 above.
On August 31, 2000, Blackacre 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.
Blackacre 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 and certain other parties have the right, in
certain circumstances, to acquire additional Units, shares of Preferred Stock
and/or shares of Common Stock.
The Company and Blackacre, among others, are party to a Registration
Rights Agreement, dated as of December 31, 1997.
Blackacre 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 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 or Blackacre and any person or entity.
Item 7. Material to be Filed as Exhibits.
--------------------------------
1. Letter Agreement, dated September 11, 2000, by and among, Westbrook
Burnham Holdings, LLC, Westbrook Co-Holdings, LLC, Blackacre SMC Master
Holdings, LLC and Burnham Pacific Properties, Inc.
2. Exchange Agreement, dated as of August 31, 2000, by and among
Burnham Pacific Properties, Inc., Burnham Pacific Operating Partnership, L.P.,
Westbrook Burnham Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and
Blackacre SMC Master Holdings, LLC, incorporated by reference to Exhibit 10.1 to
the Current Report on Form 8-K filed by Burnham Pacific Properties, Inc. on
September 6, 2000.
3. Thirteenth Amendment to Agreement of Limited Partnership of the
Partnership, dated as of August 31, 2000, by and among, among others, Burnham
Pacific Properties, Inc., Burnham Pacific Operating Partnership, L.P., Westbrook
Burnham Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and Blackacre
SMC Master Holdings, LLC incorporated by reference to Amendment No. 4 to
Schedule 13D filed by Stephen Feinberg on September 14, 2000.
4. Redemption Notice, dated as of August 31, 2000, provided by
Blackacre SMC Master Holdings, LLC to Burnham Pacific Properties, Inc. and
Burnham Pacific Operating Partnership, L.P. incorporated by reference to
Amendment No. 4 to Schedule 13D filed by Stephen Feinberg on September 14, 2000.
5. Assumption of Redemption Right, dated as of August 31, 2000, by and
between Burnham Pacific Properties, Inc. and Burnham Pacific Operating
Partnership, L.P. incorporated by reference to Amendment No. 4 to Schedule 13D
filed by Stephen Feinberg on September 14, 2000.
6. Agreement to Contribute by and among, among others, Burnham Pacific
Properties, Inc., Burnham Pacific Operating Partnership, L.P., Westbrook Burnham
Holdings, L.L.C., Westbrook Burnham Co-Holdings, L.L.C., and Blackacre SMC
Master Holdings, LLC, dated as of December 5, 1997, incorporated by reference to
Exhibit 10.2 to the Current Report on Form 8-K filed by Burnham Pacific
Properties, Inc. on December 16, 1997.
7. Stock Purchase Agreement, dated as of December 5, 1997, by and
among Burnham Pacific Properties, Inc., Burnham Pacific Operating Partnership,
L.P., Westbrook Burnham Holdings, L.L.C. and Westbrook Burnham Co-Holdings,
L.L.C., incorporated by reference to Exhibit 4.1 to the Current Report on Form
8-K filed by Burnham Pacific Properties, Inc. on January 14, 1998.
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.
September 15, 2000
/s/ Stephen Feinberg
Stephen Feinberg, in his capacity as
the investment manager for Blackacre
SMC Master Holdings, LLC
ATTENTION: INTENTIONAL MISSTATEMENTS OR OMISSIONS OF FACT CONSTITUTE
FEDERAL CRIMINAL VIOLATIONS (SEE 18 U.S.C. 1001).
<PAGE>
Westbrook Burnham Holdings, L.L.C.
Westbrook Burnham Co-Holdings, L.L.C.
Blackacre SMC Master Holdings, LLC
Burnham Pacific Properties, Inc.
110 West A Street
San Diego, CA 92101
September 11, 2000
Re: Exchange Agreement
Ladies and Gentlemen:
Pursuant to the Exchange Agreement (the "Exchange Agreement"), dated
August 31, 2000, entered into among Burnham Pacific Properties, Inc. (the
"Company"), Burnham Pacific Operating Partnership, L.P. (the "Operating
Partnership"), and each of Westbrook Burnham Holdings, L.L.C., Westbrook Burnham
Co- Holdings, L.L.C., and Blackacre SMC Master Holdings, LLC (collectively, the
"Preferred Stockholders"), the Company may not engage in certain activities
without the prior written consent of the Preferred Stockholders. Terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Exchange Agreement.
1. The Preferred Stockholders, by their execution of this agreement
(the "Agreement"), hereby consent to and approve the execution, delivery and
performance of the agreement by and among the Company and Jay L. Schottenstein
("JLS"), Schottenstein Stores Corporation ("SSC"), Jublilee Limited partnership
("JLP"), Jubilee Limited Partnership III ("JLPIII"), Schottenstein Professional
Asset Management Corp. ("SPAMC"), Michael L. Ashner ("MLA") and Susan Ashner
("SA" and, together with JLS, SSC, JLP, JLPIII, SPAMC and MLA, the "SA Group")
in the form attached hereto as Exhibit A (the "Schottenstein Agreement") and to
the following actions which may be taken by the Company pursuant to and in
accordance with the terms of the Schottenstein Agreement: (i) an amendment to
the Company's Bylaws to increase the maximum number of members of the Board to
nine (excluding any directors to be elected solely by the holders of the
Company's Series 2000- C Convertible Preferred Stock) in accordance with Section
4(f) of the Exchange Agreement; (ii) the election of JLS and MLA to the
Company's Board of Directors on or about the day hereof; (iii) an amendment to
the slate of nominees to be proposed for election at the 2000 Annual Meeting of
Stockholders, as set forth in the Exchange Agreement, to include JLS and MLA on
that slate of nominees with the result that they will become part of the Slate
and that the Company's proposal of such a slate of nominees for election at the
2000 Annual Meeting of Stockholders shall not violate any provisions of the
Exchange Agreement, including but not limited to Section 3(e) thereof; and (B)
the execution, delivery and performance by the Company of the Liquidation and
Property Management Services Agreement (the "Liquidation Agreement") in the form
attached as Exhibit B hereto; provided that the Preferred Stockholders shall
retain any approval or consent rights granted to them pursuant to the
Schottenstein Agreement or the Liquidation Agreement. The Preferred
Stockholders, by their execution of this agreement, hereby consent to and
approve the payment on September 29, 2000 of a dividend of ten cents per share
on each outstanding share of the Company's common stock and of a distribution of
ten cents per share on each outstanding common unit of Burnham Pacific Operating
Partnership, L.P; provided that all Accrued Dividends (as such term is defined
in the Articles Supplementary) owing to the Preferred Stockholders as of such
date are paid to the Preferred Stockholders prior to or concurrently with such
dividends and distributions to the Company's common stockholders and the
Operating Partnership's common unitholders. Without the written consent of the
Preferred Stockholders, the Company and the Operating Partnership hereby agree
that each shall not agree to any amendment to or waiver of the Schottenstein
Agreement or any material amendment or waiver of the Liquidation Agreement, it
being understood that any such consent relating to the Liquidation Agreement
shall be given pursuant to the standard set forth in Section 12.8 of the
Liquidation Agreement.
<PAGE>
The Preferred Stockholders waive any rights such Preferred
Stockholders may have to a Change of Control Preference or Liquidation
Preference or other benefit as a result of any of the events described in this
Section 1.
2. The Preferred Stockholders and the Company hereby agree that every
reference in the Exchange Agreement to "November 14, 2000" shall be deemed to be
a reference to "December 15, 2000".
3. The Company, by its execution of this Agreement, hereby agrees that
(a) on and after the date on which no Series 2000 Shares are outstanding, the
Board shall (i) amend the Company's Bylaws to increase the maximum number of
Directors elected by the common shareholders of the Company by one, (ii) elect
Allen Curtis Greer II to fill the vacancy created by increasing the size of the
Board pursuant to clause (i) above and (iii) nominate the individual elected to
the Board pursuant to clause (ii) above for election to the Board at any
subsequent meeting of the stockholders of the Company at which such vote will be
held, (b) in the event that the Board shall delegate the authority to make
decisions or take actions with respect to the liquidation of the Company and its
assets to a committee or sub- committee of the Board, then the number of
directors nominated by the SA Group (as such term is defined in the
Schottenstein Agreement) that serve on any such committee or sub-committee shall
not be proportionally greater than the proportion of all directors nominated by
the SA Group (as such term is defined in the Schottenstein Agreement) to the
entire Board (including any members of the Board elected by the holders of the
Series 2000 Shares) and (c) the Company shall not amend the Rights Agreement
without the consent of the Preferred Stockholders, except (i) in accordance with
clause (a) of paragraph 4 below, or (ii) in connection with any offer to acquire
greater than 50% of the common stock of the Company by means of a tender offer,
merger or similar transaction.
4. (a) Within three business days after the date hereof, (i) the
Company shall amend the Rights Agreement, or take such other action with respect
thereto, such amendment or other action to be in form and substance reasonably
acceptable to the Preferred Stockholders and its legal counsel, in order to
permit each of Westbrook, Blackacre and Morgan Stanley, Dean Witter & Co. and
its affiliates (collectively, the "Exempted Holders") to beneficially own 19.9%
of the outstanding common stock (which may include, without limitation, shares
convertible into common stock) of the Company (without attributing to either
Westbrook or Blackacre for purposes of determining its ownership of such shares
any such shares beneficially owned by the other) (the "Permitted Ownership")
without triggering any adverse consequences to any Exempted Holder under the
provisions of the Rights Agreement and (ii) the Company shall take such action
as is necessary to exempt the Permitted Ownership from the provisions of Article
VII, Section 7.2 of the Company's Articles of Amendment and Restatement (the
"Charter"), and the Preferred Stockholders shall cooperate with the Company and
take such action as may be reasonably requested by the Company in connection
therewith, provided, however, that purchases of shares of common stock of the
Company by the Exempted Holders may be prohibited if such purchases would result
in the Company becoming "closely held" within the meaning of Section 856(h) of
the Internal Revenue Code of 1986, as amended (the "Code"), or otherwise would
cause the Company to fail to qualify as a Real Estate Investment Trust under the
Code and the rules relating thereto. If Westbrook or Blackacre acquires
beneficial ownership of any securities of the Company (other than the Series
2000 Shares) they shall vote (or cause to be voted) all such securities in favor
of (i) the Board's plan of liquidation, (ii) the election of all directors
nominated by the Board for election at any and all annual or special meetings of
shareholders and (iii) the adoption of such amendments to the Rights Agreement
and the Charter or the taking of such other action with respect thereto as the
Independent Directors (as such term is defined in the Schottenstein Agreement)
may determine to be necessary or appropriate to permit any other shareholder to
acquire levels of Permitted Ownership (as such term is defined in the
Schottenstein Agreement) that the SA Group (as such term is defined in the
Schottenstein Agreement) is permitted to acquire.
<PAGE>
(b) The Company represents and warrants to the Preferred Stockholders
that, (i) except for any actions to be taken by the Company pursuant to this
Section 4, no acts are required to be taken by the Company in order to cause the
Permitted Ownership to be exempt from any restriction or limitation under the
Rights Agreement, the Charter, the Company's By-laws or any other agreement or
instrument to which the Company is a party or by which it is bound and (ii) the
execution, delivery and performance of this Agreement by the Company will not:
(A) violate any constitution, statute, regulation, rule, injunction, judgment,
order, decree, ruling, charge or other restriction of any governmental authority
or court to which the Company is subject or any provision of the Charter or
By-laws of the Company; or (B) conflict with, result in a breach of, constitute
a default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel, result in the creation of any
encumbrance upon or require any notice under any agreement to which the Company
is a party or by which it is bound.
(c) The Company hereby confirms and acknowledges that the Company has
adopted appropriate resolutions to exempt itself from the provisions of Section
3-602 of the Maryland General Corporation Law with respect to the acquisition by
any person of the capital stock of the Company, and the Company further confirms
and acknowledges that such resolutions exempt the Permitted Ownership from such
provisions.
5. The Company and the Operating Partnership, by their execution of
this Agreement, hereby agree that if any of the Company, the Operating
Partnership or the Board takes any action or fails to take any action that would
result in a breach of the agreements and undertakings set forth in Sections 3 or
4 above, then, after written notice to the Company by the Preferred Stockholders
of any such breach, and if subject to cure, such breach has not been cured
within ten Business Days after receipt of such notice, a Redemption Event shall
be deemed to have occurred, notwithstanding anything to the contrary in the
Exchange Agreement or the Articles Supplementary. The foregoing right shall be
in addition to any remedy the Preferred Stockholders shall otherwise be entitled
to at law or in equity.
6. Except with respect to the agreements set forth in Section 3(a) and
the last sentence of Section 4(a) above, on the date that no Series 2000 Shares
remain outstanding, this Agreement shall terminate and have no further force and
effect.
7. This Agreement and the Exchange Agreement shall be construed in
accordance with and governed by the internal laws of the State of Maryland and
this Agreement hereby incorporates herein by reference, mutatis mutandis,
Sections 7, 8, 10, 13, 14 and 17 of the Exchange Agreement. Except for the
letter agreement among the parties hereto dated as of August 31, 2000, this
Agreement, together with the Exchange Agreement, constitutes the entire contract
among the parties hereto relating to the subject matter hereof. This Agreement
may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed by their respective authorized officers as of the day and year
first written above.
Westbrook Burnham Holdings, L.L.C.
By:_______________________
Name:
Title:
Westbrook Burnham Co-Holdings, L.L.C.
By: _________________________
Name:
Title:
Blackacre SMC Master Holdings, LLC
by Blackacre SMC Holdings, L.P., its
managing member by Blackacre Capital
Group, LP, its general partner by
Blackacre Capital Management Corp.,
its general partner
_________________________
Name:
Title:
Burnham Pacific Properties, Inc.
By: __________________________
Name:
Title:
