-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, ERLmoClL62Q+hfDRxRbTGQexQn4WW/XE5VGwrcaBsV6u4ZZmMVOrgW4l31R+MM5/ d7Qbyut1/fw3AjdRwP3Oug== 0000912057-97-030946.txt : 19970918 0000912057-97-030946.hdr.sgml : 19970918 ACCESSION NUMBER: 0000912057-97-030946 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19970902 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19970917 SROS: AMEX SROS: PSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: MISSION WEST PROPERTIES/NEW/ CENTRAL INDEX KEY: 0000704874 STANDARD INDUSTRIAL CLASSIFICATION: OPERATORS OF NONRESIDENTIAL BUILDINGS [6512] IRS NUMBER: 952635431 STATE OF INCORPORATION: CA FISCAL YEAR END: 1130 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-08383 FILM NUMBER: 97681551 BUSINESS ADDRESS: STREET 1: 6815 FLANDERS DR STE 250 CITY: SAN DIEGO STATE: CA ZIP: 92121 BUSINESS PHONE: 6194503135 MAIL ADDRESS: STREET 1: 6815 FLANDERS DR STREET 2: SUITE 250 CITY: SAN DIEGO STATE: CA ZIP: 92121-3914 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, DC 20549 FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of Earliest Event Reported) September 2, 1997 -------------------------------- Mission West Properties - -------------------------------------------------------------------------------- (Exact Name of Registrant as Specified in its Charter) California - -------------------------------------------------------------------------------- (State or Other Jurisdiction of Incorporation) 001-08383 95-2635431 - ------------------------ ------------------------------------ (Commission File Number) (I.R.S. Employer Identification No.) 10050 Bandley Drive, Cupertino, CA 95014 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (408) 725-0700 - -------------------------------------------------------------------------------- (Registrant's Telephone Number, Including Area Code) 6815 Flanders Drive, San Diego, CA 92121 - -------------------------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) ITEM 1. CHANGES IN CONTROL OF REGISTRANT. On September 2, 1997, Mission West Properties (the "Company") completed the sale of 6,000,000 shares of its newly issued common stock to a group of private investors led by Berg & Berg Enterprises, Inc. (the "Berg Group"). The members of the Berg Group include those individuals and entities set forth in Appendix I to the Stock Purchase Agreement, dated May 27, 1997, by and between the Company and the Berg Group, as amended July 2, 1997 (the "Stock Purchase Agreement"), a copy of which is attached as an Exhibit. The Stock Purchase Agreement was previously filed with the Securities and Exchange Commission on July 3, 1997 as an exhibit to the Company's Schedule 14A, as amended. The source of consideration used by Berg & Berg Enterprises, Inc. to acquire the common stock of the Company was working capital. The source of consideration used by all other members of the Berg Group to acquire the common stock of the Company was personal funds. The percentage of voting securities of the Company now beneficially owned by the Berg Group is 79.6%. The members of the Berg Group have entered into a Voting Rights Agreement covering all shares of common stock of the Company acquired pursuant to the Stock Purchase Agreement (the "Shares"), and all shares issued on, or in exchange for, any of the Shares by reason of any stock dividend, stock split, consolidation of shares, reclassification or consolidation involving the Company. Each member of the Berg Group has agreed to vote such member's Shares as directed by Carl Berg, on behalf of Berg & Berg Enterprises, Inc., on all matters submitted to a vote of the shareholders of the Company. The Voting Rights Agreement terminates at the earliest of the following dates: (i) upon any sale of the Shares pursuant to a registration statement declared effective under the Securities Act of 1933, as amended (the "Securities Act"), but only as to the Shares so sold; (ii) upon a sale of the Shares pursuant to Rule 144 promulgated under the Securities Act, but only as to the Shares so sold; or (iii) two (2) years after the effective date of the Voting Rights Agreement. The Company's Schedule 14A, as amended, filed with the Securities and Exchange Commission on July 3, 1997 and all exhibits and attachments thereto are incorporated herein by reference with respect to information required by this Item 1. The remainder of the information required by this Item 1 is set forth in the News Releases issued by the Company on August 6, 1997 and September 2, 1997, copies of which are attached as Exhibits. 2 ITEM 7. EXHIBITS. (2) Appendix I to Stock Purchase Agreement (99) Additional Exhibits: (i) Voting Rights Agreement, dated August 4, 1997, by and among Berg & Berg Enterprises, Inc. and the other members of the Berg Group (i) August 6, 1997 News Release Announcing Shareholder Approval of Sale of Common Stock to Berg Group and Declaration of $3.30 Distribution (ii) September 2, 1997 News Release Announcing Sale of Common Stock to Berg Group and Change in Board of Directors and Officers 3 SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. MISSION WEST PROPERTIES By: /s/ ----------------------------------------- Michael L. Knapp Chief Financial Officer and Secretary Dated: 9/15/97 --------- 4 EX-2 2 EXHIBIT 2 APPENDIX I SCHEDULE OF PURCHASERS NUMBER OF SHARES NAME & ADDRESS OF COMMON STOCK PURCHASE PRICE -------------- --------------- -------------- Thelmer Aalgaard 370,000 $55,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 John J. Bartko (IRA) 370,000 $55,500.00 900 Front St., Suite 300 San Francisco, CA 94111 Berg & Berg Enterprises, Inc. 820,000 $123,000.00 10050 Bandley Drive Cupertino, California 95014 John C. Bolger 370,000 $55,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 Douglas Broyles 370,000 $55,500.00 262 Los Gatos Saratoga Rd. Los Gatos, CA 95030 Patrick W. Hurley 370,000 $55,500.00 201 Third Street, NW P.O. Drawer AA Albuquerque, NM 87103 Alan B. Kalin 370,000 $55,500.00 600 Hansen Way Palo Alto, CA 94304 Roger S. Kirk 370,000 $55,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 Michael L. Knapp 370,000 $55,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 Mark Lewis 370,000 $55,500.00 c/o S.I.R. Banfield, England Leonard C. Perham 370,000 $55,500.00 2975 Stender Way Santa Clara, CA 95054 Richard T. Tarrant (IRA) 370,000 $55,500.00 900 Front Street, Suite 300 San Francisco, CA 94111 Calvin L. Reed and Linda Eng Reed 370,000 $55,500.00 Revocable Living Trust 301 Conestoga Way Henderson, NV 89015 Carl E. Warden SEP/IRA 280,000 $42,000.00 c/o 10050 Bandley Drive Cupertino, CA 95014 Carl E. Warden 90,000 $13,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 Roy A. Wright (IRA) 370,000 $55,500.00 c/o 10050 Bandley Drive Cupertino, CA 95014 ---------------- --------------- Total 6,000,000 $900,000.00 --------- ----------- EX-99.1 3 EXHIBIT 99.1 VOTING RIGHTS AGREEMENT This Voting Rights Agreement (the "Agreement") is made and entered into as of this 4th day of August, 1997 by and among each of the persons listed on Exhibit A hereto (the "Investors") and Berg & Berg Enterprises, Inc. ("BBE"). R E C I T A L S WHEREAS, Mission West Properties, a California corporation (the "Company"), BBE and certain shareholders of the Company entered into a Stock Purchase Agreement, dated as of May 27, 1997 and as amended as of July 2, 1997 (the "Purchase Agreement") pursuant to which the Company agreed to sell and issue 6,000,000 shares of the Company's Common Stock to a group of private investors led by BBE; WHEREAS, concurrently herewith, each Investor has executed the Purchase Agreement and subscribed to the number of shares of the Company's Common Stock indicated on a subscription form delivered by each Investor (the "Purchase"); and WHEREAS, in connection with the Purchase, the Investors and BBE desire to provide for the future voting of shares of the Company's capital stock held by them; NOW, THEREFORE, in consideration of the premises and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows: ARTICLE 1. VOTING 1.1 Each Investor and BBE agree to hold all shares of Common Stock of the Company registered in their respective names or beneficially now or hereafter owned by them (hereinafter collectively referred to as the "Shares") subject to, and to vote the Shares in accordance with, the provisions of this Agreement. 1.2 Following the closing of the Purchase, each investor agrees to vote such Investor's Shares as directed by Carl Berg, on behalf of BBE, on all matters submitted to a vote of the shareholders of the Company. 1.3 This voting agreement provided in Section 1.2 above is coupled with an interest and may not be revoked (i) without the consent of the Investors holding at least a majority of the outstanding Shares then held by all Investors and (ii) without the consent of BBE; provided, however, that BBE then holds shares of Common Stock of the Company. 1.4 Concurrently with the execution of this Agreement, each of the Investors will authorize and direct the Company, through BBE to imprint or otherwise place on certificates representing the Shares the following, or a substantially similar, restrictive legend (the "Legend'): "The shares represented by this certificate are subject to the terms and conditions of a Voting Rights Agreement, dated as of __________, 1997, all the terms of which are incorporated herein by reference. A copy of such Agreement may be obtained without charge upon written request to the Company at its principal place of business." 1.5 The provisions of this Agreement shall be binding upon the successors in interest to any of the Shares. Investor understands that the Company shall not permit the transfer of any of the Shares on its books or issue a new certificate representing any of the Shares unless and until the person to whom such security is to be transferred shall have executed a written agreement, substantially in the form of this agreement, pursuant to which such person becomes a party to this Agreement and agrees to be bound by all the provisions hereof as if such person were an Investor. 1.7 Except as provided by this Agreement, each Investor and BBE shall exercise the full rights of a shareholder with respect to the Shares held by each. ARTICLE 2. EFFECT; TERMINATION This Agreement shall continue in full force and effect with respect to all Shares from the date of the Purchase until the earliest of the following dates: (i) upon any sale of the Shares pursuant to a registration statement declared effective under the Securities Act of 1933, as amended, but only as to the Shares so sold; (ii) any sale of the shares pursuant to Rule 144 promulgated under the Securities Act, but only as to the Shares so sold; or (iii) two years after the effective date of this Agreement, at which time this Agreement will terminate in its entirety. ARTICLE 3. MISCELLANEOUS 3.1 The parties hereto hereby declare that it is impossible to measure in money the damages which will accrue to a party hereto or to their heirs, personal representatives, or assigns by reason of a failure to perform any of the obligations under this Agreement and agree that the terms of this Agreement shall be specifically enforceable. If any party hereto or his heirs, personal representatives, or assigns institutes any action or proceeding to specifically enforce the provisions hereof, any person against whom such action or proceeding is brought hereby waives the claim or defense therein that such party or such personal representative has an adequate remedy at law, and such person shall not offer in any such action or proceeding the claim or defense that such remedy at law exists. 3.2 This Agreement, and the rights of the parties hereto, shall be governed by and construed in accordance with the laws of the State of California without regard to any principles governing conflicts of laws. 3.3 The rights and covenants provided herein are the sole and entire agreement between the Investors and BBE with respect to the subject matter hereof. This Agreement may be amended at any time and from time to time, and particular provisions of this Agreement may be waived as to all Investors and BBE, only by an instrument in writing signed by a majority-in-interest of the Investors and BBE. Notwithstanding the above, this Agreement may also be amended by BBE with no further action on the part of the Investors solely to include as Investors hereunder holders of Common Stock of the Company issued by the Company after the closing of the Purchase. 3.4 If any provision of this Agreement is held to be invalid or unenforceable, the validity and enforceability of the remaining provisions of this Agreement shall not be affected thereby. 3.5 This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective heirs, successors, assigns, administrators, executors and other legal representatives. 3.6 In the event that subsequent to the date of this Agreement any shares or other securities (other than any shares or securities of another corporation issued to the Company's shareholders pursuant to a plan of merger) are issued on, or in exchange for, any of the Shares held by the Investors by reason of any stock dividend, stock split, consolidation of shares, reclassification or consolidation involving the Company, such shares or securities shall be deemed to be Shares for purposes of this Agreement. 3.7 This Agreement may be executed in counterparts, and the counterparts may be delivered 2 by facsimile. 3.8 No delay or omission to exercise any right, power or remedy accruing to any party, upon any breach or default of any other party under this Agreement, shall impair any such right, power or remedy of such party nor shall it be construed to be a waiver of any such breach or default, or an acquiescence therein, or of or in any similar breach or default thereunder occurring; nor shall any waiver of any single breach or default be deemed a waiver of any other breach or default theretofore or thereafter occurring. Except as provided in Section 3.3 hereof, any waiver, permit, consent or approval of any kind or character on the part of any party of any breach or default under this Agreement, or any waiver on the part of any party of any provisions or conditions of this Agreement, must be in writing and shall be effective only to the extent specifically set forth in such writing. All remedies, either under this Agreement, or by law or otherwise afforded to any holder, shall be cumulative and not alternative. The foregoing Voting Rights Agreement is hereby executed as of the date first above written. BERG & BERG ENTERPRISES, INC. By: ___________________________________________ __________________________________________ Please print name and title Address: 10050 Bandley Drive Cupertino, CA 95014 INVESTORS: _______________________________________________ By: ___________________________________________ __________________________________________ Please print name and title 3 EX-99.2 4 EXHIBIT 99.2 FOR IMMEDIATE RELEASE For Further Information Contact: Michael M. Earley, President and CEO Telephone: (619) 231-1818 Katrina L. Thompson, CFO Telephone: (619) 450-3135 MISSION WEST PROPERTIES ANNOUNCES SHAREHOLDER APPROVAL TO SELL STOCK AND DECLARATION OF $3.30 DISTRIBUTION SAN DIEGO, CALIFORNIA, August 6, 1997 -- Mission West Properties (AMEX/PCX: MSW) announced that at a special meeting held yesterday the Company's shareholders approved the sale of 6,000,000 shares of newly issued common stock, at $0.15 per share, to a group of private investors led by Berg & Berg Enterprises, Inc. (the "Berg Group") of Cupertino, California. The sale is scheduled to close in early September, subject to customary conditions. After the closing and satisfaction of related closing costs and liabilities, the Company anticipates having net assets of approximately $5,100,000, consisting primarily of cash and cash equivalents. In a related action, the Mission West Board of Directors declared a $3.30 per share cash distribution to shareholders (other than the Berg Group), with a record date of August 28, 1997 and a pay date of October 21, 1997. Because of the magnitude of this special distribution in relation to the market price of the Company's shares, the American Stock Exchange has determined that the shares will not trade ex-dividend until October 22, 1997 and that shareholders selling shares between the August 28 record date and the October 21 payment date will transfer the right to receive the distribution along with the underlying shares. Commenting on the these developments, Michael M. Earley, President and Chief Executive Officer, stated, "We are pleased to successfully conclude this era in Mission West's history with a substantial distribution to shareholders. Coupled with the $9.00 distribution paid in February 1997, the $3.30 distribution to be paid in October represents a significant cash return to our shareholders. Additionally, we believe the arrangement with the Berg Group provides an ongoing opportunity for the Company and its shareholders. Carl Berg, President of Berg & Berg Enterprises, has proven to be a very capable real estate developer and businessman, and plans to bring a strong portfolio of commercial real estate to the Company. We wish him the best in his future operations of the Company." Mission West Properties is a former developer and owner of commercial real estate located principally in Southern California. Mission West concluded the sale of all its operating assets earlier this year. Mission West is 44-percent owned by Alarmguard Holdings, Inc. (AMEX: AGD). EX-99.3 5 EXHIBIT 99.3 FOR IMMEDIATE RELEASE For Further Information Contact: Carl E. Berg, President and CEO Michael L. Knapp, CFO Telephone: (408) 725-0700 MISSION WEST PROPERTIES ANNOUNCES COMPLETION OF SALE OF 6,000,000 SHARES AND CHANGE IN BOARD OF DIRECTORS AND OFFICERS SAN DIEGO, CALIFORNIA, September 2, 1997 -- Mission West Properties (AMEX/PCX: MSW) today announced that it had completed the sale of 6,000,000 shares of newly issued common stock, for $0.15 per share cash, to a group of private investors led by Berg & Berg Enterprises, Inc. (the "Berg Group") of Cupertino, California. Approximately 80 percent of Mission West's outstanding shares are now owned by the Berg Group, who will move the corporation's headquarters to Cupertino. In accordance with the terms of the sale, four new members were appointed to the board of directors upon the resignations of the current board. The new board members, appointed on an interim basis, are Berg & Berg Enterprises employees Carl E. Berg, Michael L. Knapp, and Michael J. Orosky, and businessmen Roger Kirk and Keith Cocita. Additionally, current officers of the corporation were replaced with Carl E. Berg as President and Chief Executive Officer and Michael L. Knapp as acting Chief Financial Officer and Corporate Secretary. As previously announced on August 5, 1997, the Mission West Board of Directors declared a $3.30 per share cash distribution to shareholders (other than the Berg Group), with a record date of August 28, 1997 and a pay date of October 21, 1997. Because of the magnitude of this special distribution in relation to the market price of the Company's shares, the American Stock Exchange determined that the shares will not trade ex-dividend until October 22, 1997 and that shareholders selling shares between the August 28 record date and the October 21 payment date will transfer the right to receive the distribution along with the underlying shares. During this time, it is expected that the Company's stock will continue to be listed and traded on both the American and Pacific Stock Exchanges. Michael M. Earley, former president and director, stated, "We are pleased to successfully conclude this sale to the Berg Group and to return value to our current shareholders, other than the Berg Group, with the distribution to be paid in October. Coupled with the $9.00 distribution paid in February 1997, the shareholders will receive $12.30 this year on a stock that traded around $5.00 per share as recently as a year and a half ago. We wish Carl Berg and the Company the best with future operations." Mission West Properties is a former developer and owner of commercial real estate located principally in Southern California. Mission West concluded the sale of all its operating assets earlier this year. Mission West is 44-percent owned by Alarmguard Holdings, Inc. (AMEX: AGD). -----END PRIVACY-ENHANCED MESSAGE-----