-----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, ES9ltjWRaffkWiNainrEbPxqXnaSVQMzCC6PG8vXTYz+raH5LqlC7HYlIho76zm8 wZGH9fIIMwTh4qxLndRSLw== 0001047469-97-006294.txt : 19971127 0001047469-97-006294.hdr.sgml : 19971127 ACCESSION NUMBER: 0001047469-97-006294 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 7 FILED AS OF DATE: 19971126 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: S-3 SEC ACT: SEC FILE NUMBER: 333-41203 FILM NUMBER: 97729776 BUSINESS ADDRESS: STREET 1: 10050 BANDLEY DRIVE CITY: CUPERTINO STATE: CA ZIP: 95014 BUSINESS PHONE: 4087250700 MAIL ADDRESS: STREET 1: 10050 BANDLEY DRIVE CITY: CUPERTINO STATE: CA ZIP: 95014 S-3 1 S-3 As filed with the Securities and Exchange Commission on November 26, 1997 Registration No. ___________ =============================================================================== SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------------- FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 ----------------------- MISSION WEST PROPERTIES (EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER) CALIFORNIA 952635431 (STATE OR OTHER JURISDICTION (I.R.S. EMPLOYER OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NO.) CARL E. BERG PRESIDENT AND CHIEF EXECUTIVE OFFICER MISSION WEST PROPERTIES 10050 BANDLEY DRIVE 10050 BANDLEY DRIVE CUPERTINO, CALIFORNIA 95014-2188 CUPERTINO, CALIFORNIA 95014-2188 (408) 725-0700 (408) 725-0700 (Address including zip code, (Address including zip code, and telephone number, including and telephone number, including area code, of registrant's area code, of registrant's principal executive offices) principal executive offices) ----------------------- COPIES TO: ALAN B. KALIN GRAHAM & JAMES LLP 600 HANSEN WAY PALO ALTO, CALIFORNIA 94304-1043 ----------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: As soon as practicable following the effectiveness of this Registration Statement. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, check the following box. / / If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, please check the following box. /X/ If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of earlier effective registration statement for the same offering. / / _________ If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. / / ___________ If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box. / /
CALCULATION OF REGISTRATION FEE ========================================================================================= TITLE OF EACH CLASS AMOUNT TO BE PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF OF SECURITIES TO BE REGISTERED OFFERING PRICE AGGREGATE REGISTRATION REGISTERED PER SHARE OFFERING PRICE FEE Common Stock (no par value) 1,449,995 $4.50 (1) $6,524,978 (1) $1,977 (2) ========================================================================================= (1) Estimated solely for the purpose of calculating the registration fee on the basis of the price paid by purchasers in the Company's most recent sale of Common Stock in a private placement. (2) Calculated pursuant to Rule 457(a) on the basis of the price paid by purchasers in the most recent sale of the Company's Common Stock in a private placement which price is higher than the closing price of the Common Stock on October 17, 1997 prior to the halt in trading.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. ========================================================================== INDEX TO EXHIBITS ON PAGE II-5. INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES EFFECTIVE. THE PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE. SUBJECT TO COMPLETION, DATED NOVEMBER 26, 1997 PROSPECTUS MISSION WEST PROPERTIES 1,449,995 Shares of Common Stock No par value This Prospectus relates to 1,449,995 shares (the "Shares") of Common Stock, no par value, (the "Common Stock") of Mission West Properties (the "Company") which may be offered from time to time by the selling shareholders named herein (the "Selling Shareholders"). The Shares may be offered through brokers and dealers to be selected by the Selling Shareholder(s), and may be offered for sale through the American Stock Exchange (the "AMEX") or the Pacific Exchange Incorporated (the "PSE") pursuant to the Registration Statement of which this Prospectus is a part, pursuant to Rule 144, in negotiated transactions, at fixed prices which may be changed, at market prices prevailing at the time of sale, at prices related to prevailing market prices or at negotiated prices. See "Selling Shareholders" and "Plan of Distribution." None of the proceeds from the sale of the Shares by the Selling Shareholders will be received by the Company. The Company has agreed to bear certain expenses, including the fees and costs of preparing, filing and keeping effective the registration statement of which this Prospectus is a part (other than selling commissions and fees and expenses of counsel and other advisors to the Selling Shareholders), in connection with the registration of the Shares. The Common Stock of the Company is listed on the AMEX and the PSE, under the symbol "MSW". On October 17, 1997, the closing price of the Common Stock, as quoted on the AMEX, was $3.38. ____________ THE SHARES INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS" BEGINNING ON PAGE 3. ____________ The Selling Shareholders and any broker-dealers, agents or underwriters that participate with the Selling Shareholders in the distribution of the Shares may be deemed to be "underwriters" within the meaning of Section 2(11) of the Securities Act of 1933 (the "Securities Act"), and any commissions received by them and any profit on the resale of the Shares purchased by them may be deemed underwriting commissions or discounts under the Securities Act. THESE SHARES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. The date of this Prospectus is November _, 1997. AVAILABLE INFORMATION Mission West Properties (the "Company") is subject to the informational requirements of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in accordance therewith, files reports, proxy statements and other information with the Securities and Exchange Commission (the "Commission"). Reports, proxy statements and other information filed by the Company may be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, and at the Commission's regional offices located at 7 World Trade Center, 13th Floor, New York, New York 10048, and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661; and copies of such material may be obtained from the Public Reference Section of the Commission, Washington, D.C. 20549, at prescribed rates. In addition, the Commission maintains a web site that contains reports, proxy and information statements and other information regarding registrants that file electronically with the Commission ("http://www.sec.gov"). Such reports, proxy statements and other information may also be inspected at the offices of the American Stock Exchange, 86 Trinity Place, New York, New York, and the Pacific Exchange Incorporated, 115 Sansome Street, 8th Floor, San Francisco, California. INFORMATION INCORPORATED BY REFERENCE The following documents filed by the Company with the Commission are incorporated by reference in this Prospectus: 1. The Company's Annual Report on Form 10-K for the fiscal year ended November 30, 1996. 2. The Company's Quarterly Report on Form 10-Q for the quarter ended February 28, 1997. 3. The Company's Quarterly Report on Form 10-Q for the quarter ended May 31, 1997. 4. The Company's Quarterly Report on Form 10-Q for the quarter ended August 31, 1997. 5. The Company's Current Report on Form 8-K filed September 17, 1997. 6. The description of the Company's Common Stock contained in the Company's registration statement on Form S-8 filed with the Securities and Exchange Commission on May 17, 1991 (Registration #33-40664). The above-listed documents are on file with the Commission and are incorporated in this Prospectus by reference and made a part hereof. All documents subsequently filed by the Company pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange Act prior to the termination of the offering of the Common Stock hereunder shall be deemed to be incorporated by reference into this Prospectus. Any statement contained in this Prospectus, any Prospectus supplement or in a document incorporated by reference shall be deemed modified or superseded to the extent that a statement contained in any Prospectus supplement or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein or therein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed to constitute a part hereof, except as so modified or superseded. The Company will cause to be furnished without charge to each person to whom this Prospectus is delivered, upon the written or oral request of such person, a complete copy of the above referenced Form 10-K or Form 10-Q or other documents filed under the Exchange Act. Requests should be addressed to: Mission West Properties, 10050 Bandley Drive, Cupertino, CA 95014; telephone: (408) 725-0700. 2 THE COMPANY The Company has historically been engaged in developing, owning, operating and selling income-producing real estate located principally in Southern California, but it completed the sale of its entire real estate portfolio in January and May 1997. The Company recently raised $5,625,000 through the private placement of Common Stock and intends to continue its real estate operations by acquiring other properties. See "Risk Factors" and "Recent Developments." A controlling interest in the Company was sold to a group of private investors led by Berg & Berg Enterprises, Inc. (the "Berg Group") in September 1997. On September 2, 1997, all officers and directors of the Company resigned, and the Berg Group appointed officers and directors to serve until the next annual meeting at which directors are elected. The principal executive offices of the Company are located at 10050 Bandley Drive, Cupertino, California 95014 (Telephone: (408) 725-0700). RISK FACTORS In addition to the other information contained in this Prospectus, investors should consider carefully the following risk factors before making an investment decision concerning the Common Stock. This Prospectus contains "forward-looking statements" within the meaning of the Private Securities Litigation Reform Act of 1995 (the "Reform Act"). In accordance with the Reform Act, cautionary statements set forth below and additional cautionary statements contained in the section entitled "Liquidity and Capital Resources" in the Company's Form 10-Q for the quarter ended August 31, 1997 pertain to these forward looking statements. Those cautionary statements identify certain important factors that could cause actual results to differ materially from those in the forward-looking statements and from historical trends. LACK OF OPERATING HISTORY As a consequence of the sale of all of the Company's previous real estate holdings during the first half of 1997 and the change in control effected by the Berg Group in September 1997, the Company as it currently exists does not have an operating history on which an evaluation of the Company and its prospects can be based. Therefore, the Company's reports filed pursuant to the Exchange Act and incorporated herein by reference are not relevant to an evaluation of the Company. There can be no assurance that the Company as it is currently comprised will be successful in its attempts to engage in the business of developing, owning, and operating income-producing real estate, and there can be no assurance that the Company will achieve or sustain profitability. TRADING OF COMMON STOCK ON THE AMEX; LIMITED PUBLIC DISTRIBUTION AND REDUCED MARKET VALUE SUBJECT TO THIS REGISTRATION STATEMENT The Common Stock is listed on the AMEX and the PSE. The AMEX halted trading in the Common Stock at the opening of trading on October 20, 1997, prior to a $3.30 special distribution paid to shareholders of record as of August 28, 1997 which occurred on October 21, 1997 (the "October Distribution"). The closing price of the Common Stock on October 17, 1997, the last day of trading prior to the halt, was $3.38. Primarily due to the October Distribution, the Company's assets decreased significantly, and shareholders' equity fell below the minimum guidelines set by the AMEX. The AMEX considers suspending dealings in or removing from listing securities of an issuer if the number of publicly held shares is less than 200,000 (excluding shares held by officers, directors, controlling shareholders or other family or concentrated holdings), if the total number of public shareholders is less than 300, or if the aggregate market value of publicly held shares is less than $1,000,000. Subject to the registration of the 3 Shares, the Company lacks an adequate number of publicly held shares and has insufficient market value, or "float," for continued listing on the AMEX. To increase the price per share of the Common Stock, raise funds and increase assets and shareholders' equity, at a special meeting of shareholders held on November 10, 1997, the shareholders of the Company approved a 1 for 30 reverse stock split (the "Reverse Split") and the sale of 1,250,000 newly issued shares of Common Stock at $4.50 per share in a private placement offering. Although the Company believes that trading will resume in early December 1997, there can be no assurance that the Company will continue to meet the AMEX listing requirements, nor can there be any assurance that the AMEX will continue trading of the Common Stock. The Shares offered hereby may only be sold on the AMEX or PSE upon resumption of trading of the Common Stock by the AMEX. VOLATILITY OF STOCK PRICE; SUBSEQUENT SALES OF COMMON STOCK AT $4.50 PER SHARE The price of the Common Stock has fluctuated due to the sale of the Company's revenue-generating assets, several distributions paid to shareholders in connection therewith and other factors. The Board of Directors of the Company has determined that until the Company has acquired operating properties or other assets which will generate reportable income and funds from operations, all issuances of Common Stock and transactions involving the actual or contingent issuance of equity securities of the Company shall be effected at a price of $4.50 per share, or the equivalent thereof. The Company believes that factors such as announcements of real property acquisitions by the Company, conditions in the real estate market generally and conditions in the economy could cause the price of the Common Stock to fluctuate, perhaps substantially. USE OF PROCEEDS The Company will not receive any of the proceeds from the sale of the Shares by the Selling Shareholders. 4 THE SELLING SHAREHOLDERS The following table sets forth the name and the number of shares of Common Stock beneficially owned by the Selling Shareholders as of November 12, 1997, the number of Shares to be offered by the Selling Shareholders and the number and percentage of shares to be owned beneficially by the Selling Shareholders if all of the Shares offered hereby by the Selling Shareholders are sold as described herein. Except as otherwise described below, the Selling Shareholders have not held any office with, been employed by, or otherwise had a material relationship with, the Company or its affiliates since November 12, 1994.
Shares of Common Stock Number of Shares of Percentage of Beneficially Owned Before Common Stock Offered Outstanding Shares of Name of Selling Shareholder Offering Hereby Common Stock After - --------------------------- ------------------------- --------------------- ---------------------- Offering(1) ----------- Bruce Aalgaard 2,220 2,220 * Mike Aalgaard 2,220 2,220 * Thelmer G. Aalgaard (2) 82,973(3) 82,973 * John J. Bartko (IRA) 12,333 12,333 * Berg & Berg Enterprises, Inc. (4) 27,333 27,333 * Carl E. Berg, Trustee, Berg & Berg Profit Sharing Plan FBO Brian Aalgaard Dated 1/1/84 11,112(5) 11,112 * Carl E. Berg, Trustee, Berg & Berg Profit Sharing Plan FBO Sandy Stevens dated 1/1/84 1997 Contribution 1,066 1,066 * J. Frederick Berg, Jr. 10,000 10,000 * Ilan Bender 33,334 33,334 * Ron Bender 11,112 11,112 * Hans Besmer 13,334 13,334 * John C. Bolger 22,222 22,222 * Douglas Broyles 12,333 12,333 *
- ----------------------- (1) Less than one percent of outstanding shares of Common Stock indicated by "*". (2) Mr. Aalgaard is a director and employee of Berg & Berg Enterprises, Inc. (3) Includes (i) 33,400 shares held of record by Carl E. Berg, Trustee, Berg & Berg Profit Sharing Plan FBO Thelmer G. Aalgaard Dated 1/1/84, (ii) 4,160 shares held of record by Carl E. Berg, Trustee, Berg & Berg Profit Sharing Plan FBO Thelmer G. Aalgaard Dated 1/1/84, 1997 Contribution, and (iii) 2,220 shares held of record by Thelmer G. Aalgaard, Custodian, Rachel Michaels, Under the California Uniform Gifts to Minor Act. (4) Carl E. Berg, an officer and director of Berg & Berg Enterprises, Inc., is also an officer and director of the Company. (5) Includes 2,112 shares held of record by Carl E. Berg, Trustee, Berg & Berg Profit Sharing Plan FBO Brian Aalgaard Dated 1/1/84, 1997 Contribution. 5
Shares of Common Stock Number of Shares of Percentage of Beneficially Owned Before Common Stock Offered Outstanding Shares of Name of Selling Shareholder Offering Hereby Common Stock After - --------------------------- ------------------------- --------------------- ---------------------- Offering(1) ----------- David M. Butze IRA Acct # 81 8-73-D81 20,000(6) 20,000 * Monika Kopp Butze UTA Charles Schwab & Co., Inc. IRA Rollover DTD 8/2/95, Acct # SR 2003-6975 20,000(7) 20,000 * Keith L. Cocita(8) 10,000 10,000 * Myron Crawford, IRA 28,880 28,880 Richard F. Hill(8A) 6,667 6,667 * Alan H. Huggins 22,200 22,200 * Patrick W. Hurley 30,333 30,333 * Alan B. Kalin 12,333(9) 12,333 * Donald J. Karp 15,000 15,000 * Roger S. Kirk (10) 34,556 34,556 * Michael L. Knapp(11) 34,733(12) 34,733 * Ronald S. Lesniak(12A) 11,112 11,112 * Mark Lewis 12,333 12,333 * Dale W. & Patricia Mahon 22,200 22,200 * William J. Masuda 22,223(13) 22,223 * J & V Menache Revocable Trust U/A DTD 8/26/97 5,550 5,550 *
- ------------------- (6) Includes 17,000 shares held of record by Monika Kopp Butze UTA Charles Schwab & Co., Inc. IRA Rollover DTD 8/2/95 Acct # SR 2003-6975 of which Mr. Butze may be deemed the beneficial owner. (7) Includes 3,000 shares held of record by David M. Butze of which Ms. Butze may be deemed the beneficial owner. (8) Mr. Cocita is a director of the Company and is the president and a director of X-cyte, Inc., an affiliate of Carl E. Berg. (8A) Mr. Hill is the chief financial officer of Teledex Corporation, an affiliate of Carl E. Berg. (9) Includes 6,667 shares held of record by Al Ladhams or Rod Fujii, Trustees for the Graham & James LLP Profit Sharing Plan FBO Alan B. Kalin. (10) Mr. Kirk is a director of the Company, and is a general partner in certain partnerships in which affiliates of Carl E. Berg also are general partners. (11) Mr. Knapp is an officer and director of the Company and an officer and employee of Berg & Berg Enterprises, Inc. (12) Includes (i) 3,333 shares held of record by Carl E. Berg, Trustee, Berg & Berg Enterprises, Inc. 401K FBO Michael L. Knapp Dated 1/1/84, (ii) 2,000 shares held of record by Michael L. Knapp, Custodian, Ryan Michael Knapp Under the California Uniform Gifts to Minor Act, and (iii) 2,000 shares held of record by Michael L. Knapp, Custodian, Kayla Marie Knapp Under the California Uniform Gifts to Minor Act. (12A) Mr. Lesniak is the president and a director of Teledex Corporation Corporation, an affiliate of Carl E. Berg. (13) Includes (i) 10,000 shares held of record by IRA FBO William J. Masuda DLISC As Custodian Rollover Account and (ii) 12,223 shares held of record by IRA FBO William J. Masuda DLISC As Custodian. 6
Shares of Common Stock Number of Shares of Percentage of Beneficially Owned Before Common Stock Offered Outstanding Shares of Name of Selling Shareholder Offering Hereby Common Stock After - --------------------------- ------------------------- --------------------- ---------------------- Offering(1) ----------- Eric A. McAfee 70,000 70,000 * Renee Michaels 2,220 2,220 * John S. Moran 20,000 20,000 * Donald E. Morris, Jr., The Morris Family Trust Dated 3/27/89 5,556 5,556 * New Currents 2,223 2,223 * Michael J. and Sonya O'Rosky(14) 21,300(15) 21,300 * Adrianna Parker 4,445 4,445 * Leonard C. Perham 34,833 34,833 * Duane Rayburn 33,334 33,334 * Calvin L. and Linda Eng, Reed TR UA 09/26/95 Revocable Living Trust 23,433 23,433 * Robert S. & Julia G. Reis Trust Agreement Dated July 3, 1996 22,200 22,200 * D.M. Laurice & M.M. Rosati Trustees, WSGR Retirement Plan FBO Robert P. Feldman 10,000 10,000 * Todd Rothbard 5,556 5,556 * Robert M. Rowland 13,334 13,334 * Joel G. Sakamoto 30,000 30,000 * John D. Salera 20,000(16) 20,000 * January S. Scarpino 11,000 11,000 * Robert Snyder 15,556 15,556 * Annemarie Staepelaere 16,500(17) 16,500 *
- -------------------- (14) Mr. O'Rosky is a director of the Company and an employee of Berg & Berg Enterprises, Inc. Mr. O'Rosky is also the son-in-law of Clyde J. Berg, a director of Berg & Berg Enterprises, Inc. and brother of Carl E. Berg. (15) Includes (i) 4,000 shares held of record by Michael J. O'Rosky, Custodian, Mason Michael O'Rosky, Under the California Uniform Gifts to Minor Act and (ii) 4,000 shares held of record by Michael J. O'Rosky, Custodian, Hannah Rae O'Rosky, Under the California Uniform Gifts to Minor Act. (16) Includes 12,000 shares held of record by John D. Salera UTA Charles Schwab & Company, Inc. SEP IRA Dated 4/11/93 Acct # 7752-7649 and 8,000 shares held of record by John D. Salera UTA Charles Schwab & Company, Inc. IRA R/O Dated 7/3/91 Acct # 7752-7652. (17) Does not include (i) 8,156 shares held of record by Raymond L. Staepelaere and (ii) 22,222 shares held of record by VFTC-Custodian IRA Raymond L. Staepelaere Acct # 9867961164 of which Ms. Staepelaere may be deemed to be the beneficial owner. 7
Shares of Common Stock Number of Shares of Percentage of Beneficially Owned Before Common Stock Offered Outstanding Shares of Name of Selling Shareholder Offering Hereby Common Stock After - --------------------------- ------------------------- --------------------- ---------------------- Offering(1) ----------- David J. Staepelaere 16,500 16,500 * Raymond L. Staepelaere 30,378(18) 30,378 Daniel B. Stern 11,000 11,000 * Jeffrey B. Stern 11,000 11,000 * Kenneth B. Stern 11,000 11,000 Lee B. Stern 11,000 11,000 * Steve J. Stevens 19,556(19) 19,556 * Gary R. Sitzmann IRA Rollover, Custodian Painewebber 16,667 16,667 * Richard T. Tarrant (IRA) 12,333 12,333 * Thomas B. Taylor 14,400 14,400 * Bert Valdez 44,446(20) 44,446 * Curtis Valdez 4,445 4,445 * Russel Valdez 4,445 4,445 Karen S. Vorster 5,000 5,000 * Carl E. Warden 117,333(21) 117,333 * Gordon F. Webb 22,212 22,212 * Roland M. Webb 33,334 33,334 * Roy A. Wright (IRA) 12,333 12,333 *
- ------------------ (18) Includes 22,222 shares held of record by VFTC-Custodian IRA Raymond L. Staepelaere Acct # 9867961464. Does not include 16,500 shares held of record by Annemarie Staepelaere of which Mr. Staepelaere may be deemed the beneficial owner. Mr. Staepelaere is a general partner in certain partnerships in which Carl E. Berg or his affiliates also are general partners. (19) Includes (i) 4,889 shares held of record by Steve J. Stevens IRA, Raymond James & Assoc. Inc., Custodian, Acct # 71094810 and (ii) 14,667 shares held of record by Steve J. Stevens & Adeline L. Stevens JT/WROS. (20) Includes (i) 16,667 shares held of record by A&B Companies 401K Savings Plan, Bert Valdez, Trustee, (ii) 5,556 shares held of record by A&B Painting West, Inc., Attn: Bert Valdez, and (iii) 22,223 shares held of record by Bert B. & Adrena F. Valdez Revocable Trust Dated 6/21/78. Does not include 4,445 shares held of record by Curtis Valdez and 4,445 shares held of record by Russel Valdez of which Mr. Valdez may be deemed to the beneficial owner. (21) Includes 9,333 shares held of record by Carl E. Warden SEP/IRA. 8
Shares of Common Stock Number of Shares of Percentage of Beneficially Owned Before Common Stock Offered Outstanding Shares of Name of Selling Shareholder Offering Hereby Common Stock After - --------------------------- ------------------------- --------------------- ---------------------- Offering(1) ----------- Robert L. and Sharon K. Yoerg 111,111(22) 111,111 * James R. & Sherri Zorn 21,300(23) 21,300 * Steve Zungul 29,000(24) 29,000 *
Certain of the Selling Shareholders have entered into a Voting Rights Agreements covering all of the Shares acquired pursuant to a Stock Purchase Agreement, dated May 27, 1997, as amended July 2, 1997, by and among the Company and the purchasers named therein, and a Stock Purchase Agreement, dated November 12, 1997, by and among the Company and the purchasers named therein. Each such Selling Shareholder has agreed to vote such Selling Shareholder's Shares as directed by Carl Berg, on behalf of Berg & Berg Enterprises, Inc. The Voting Rights Agreements terminate 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, but only as to the Shares so sold; (ii) upon the 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 the Voting Rights Agreements. Each certificate representing Shares subject to the Voting Rights Agreement is imprinted with a legend substantially similar to the following: "The shares represented by this certificate are subject to the terms and conditions of a Voting Rights Agreement, dated as of November 12, 1997, all the terms of which are incorporated herein by reference. The Voting Rights Agreement shall terminate or become inapplicable as to shares represented by this certificate under the circumstances described therein. A copy of such Agreement may be obtained without charge upon written request to the Company at its principal place of business." PLAN OF DISTRIBUTION The Selling Shareholders may offer their Shares at various times in one or more of the following transactions: - on any of the United States securities exchanges where the Common Stock is listed and traded, include the AMEX and the PSE upon resumption of trading of the Common Stock; - in the over-the-counter market; - in transactions other than on such exchanges or in the over-the-counter market; - in connection with short sales of the Shares; - -------------------- (22) Includes (i) 55,556 shares held of record by Robert L. Yoerg M.D. Trustee, Robert L. Yoerg Professional Corporation Pension Plan and (ii) 11,111 shares held of record by Sharon K. Yoerg, Custodian, Elizabeth A. Yoerg, Under the California Uniform Gifts to Minors Act. (23) Includes 4,000 shares held of record by Kristen A. Zorn, Custodian James R. Zorn Under the Texas Uniform Gifts to Minor Act and 4,000 shares held of record by Reagan E. Zorn, Custodian James R. Zorn, Under the Texas Uniform Gifts to Minor Act. (24) Includes (i) 1,000 shares held of record by Steve Zungul, Custodian, Chris Alvidrez-Oliver, Under the Uniform Gifts to Minor Act, (ii) 1,000 shares held of record by Steve Zungul, Custodian, Matt Alvidrez-Oliver, Under the California Uniform Gifts to Minor Act, (iii) 1,000 shares held of record by Steve Zungul, Custodian Lorenza Sashka Zungul Under the Uniform Gifts to Minor Act, and (iv) 1,000 shares held of record by Steve Zungul, Custodian, Marcos Zungul, Under the California Uniform Gifts to Minor Act. 9 - by pledge to secure debts and other obligations; - in connection with the writing of non-traded and exchange-traded call options, in hedge transactions and in settlement of other transactions in standardized or over-the-counter options; or - in a combination of any of the above transactions. The Selling Shareholders may sell the Shares at market prices prevailing at the time of sale, at prices related to such prevailing market prices, at negotiated prices or at fixed prices. Affiliates of the Company who are Selling Shareholders, including Berg & Berg Enterprises, Inc. and its affiliates, and certain officers and directors of the Company have represented to the Company that they will not, directly or indirectly, bid for, purchase or attempt to induce any person to bid for or purchase shares of Common Stock in violation of Rule 102(a) of Regulation M promulgated by the Commission. The Selling Shareholders may use broker-dealers to sell the Shares. If this happens, broker-dealers will either receive discounts or commissions from the Selling Shareholders, or they will receive commissions from purchasers of Shares for whom they acted as agents. RECENT DEVELOPMENTS HALT IN TRADING OF THE COMMON STOCK. In connection with the October Distribution, the AMEX halted trading of the Common Stock at the opening of trading on October 20, 1997. The last day of trading prior to the halt was October 17, 1997. The closing price of the Common Stock on October 17, 1997 was $3.38. The Company believes that by effecting the Reverse Split, completing the private placement of 1,250,000 shares of Common Stock and registering the Shares for resale under this Prospectus trading of the Common Stock will resume. However, there can be no assurance that trading will resume and continue or that the price of the Common Stock will increase due to the Company's recent efforts to increase the price per share of the Common Stock and increase the assets of the Company. See "Risk Factors -- Trading of Common Stock on the AMEX; Limited Public Distribution and Reduced Market Value Subject to this Registration Statement." AMENDMENT AND RESTATEMENT OF ARTICLES OF INCORPORATION; REVERSE SPLIT; ODD-LOT TENDER OFFER. On November 10, 1997, following the approval by the Company's shareholders at a special meeting, the Company filed Amended and Restated Articles of Incorporation which effected the Reverse Split, increased the number of shares of Common Stock to 200,000,000 (post-Reverse Split), authorized 20,000,000 shares of undesignated preferred stock and authorized the Company to issue convertible debt when and as determined by the board of directors of the Company. The number of shares of the Common Stock publicly held following the Reverse Split was reduced to approximately 51,000 shares. Subject to the registration of the Shares, the Company may lack an adequate number of publicly held shares and has insufficient market value or "float" for continued listing on the AMEX. See "-- Private Placements" and "Risk Factors -- Trading of Common Stock on the AMEX; Limited Public Distribution and Reduced Market Value Subject to this Registration Statement." Following the Reverse Split, some shareholders of the Company will hold "odd-lots" of less than 100 shares. Because brokerage commissions and other costs of transactions in such odd-lots are generally higher than the costs of transactions in "round-lots" of even multiples of 100 shares, the Company has commenced an odd-lot tender offer pursuant to the exemption afforded by Rule 13e-4(h)(5) promulgated by the Commission pursuant to Section 13(e)(2) of the Exchange Act. The odd-lot tender offer is open to all holders of less than 100 shares and the Company will pay $4.50 per share for each share of Common Stock purchased pursuant to the odd-lot tender offer (post-Reverse Split). 10 Letters of Transmittal including instructions on exchange of stock certificates in connection with the Reverse Split and purchase of odd-lots in connection with the odd-lot tender offer will be disseminated to all holders of the Common Stock. PRIVATE PLACEMENTS. On September 2, 1997, the Company completed the sale of 6,000,000 shares of Common Stock at a price per share of $0.15, with aggregate proceeds to the Company of $900,000. The sale was exempt from registration in accordance with Rule 506 of Regulation D promulgated by the Commission under Section 4(2) of the Securities Act. That transaction effected a change in control of the Company. On November 12, 1997, following the Reverse Split, the Company completed the private placement of 1,250,000 shares at a price per share of $4.50, with aggregate proceeds to the Company of $5,625,000. The sale was exempt from registration in accordance with Rule 506 of Regulation D. That private placement was conducted in order to increase the Company's cash and total assets and shareholders' equity and to increase the number of shares of Common Stock outstanding following the Reverse Split. CHANGE IN FISCAL YEAR END. In an action by unanimous written consent, the Company's Board of Directors has changed the Company's fiscal year end from November 30 to December 31. LEGAL MATTERS The validity of the Common Stock offered hereby will be passed upon for the Company by Graham & James LLP, Palo Alto, California, counsel to the Company. Alan B. Kalin, a partner in Graham & James LLP, owns 12,333 shares of Common Stock. EXPERTS The consolidated financial statements incorporated in this Prospectus by reference to the Company's Annual Report on Form 10-K for the year ended November 30, 1996, have been so incorporated in reliance on the report of Price Waterhouse LLP, independent accountants, given on the authority of said firm as experts in auditing and accounting. DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES Section 317 of the California General Corporations Law ("CGCL") provides that a corporation may indemnify its directors, officers, employees, or agents in terms sufficiently broad to permit such indemnification under certain circumstances for liabilities (including provisions permitting advancement for expenses incurred) arising under the Securities Act. Article 5 of the Company's Amended and Restated Articles of Incorporation authorizes the Company to indemnify present or former directors, officers, employee or other agents of the Company, or a person serving in a similar capacity in another organization at the request of the Company, through bylaw, agreement or otherwise, in excess of the indemnity expressly permitted by Section 317 of the CGCL, provided that agents may not be indemnified for any acts or omissions or as to any circumstances for which indemnity is expressly prohibited by Section 317 of the CGCL. In addition, the liability of directors of the Company for monetary damages is eliminated to the fullest extent permissible under the laws of California. The Company's Bylaws also provide that the agents of the corporation are indemnified and held harmless from all liability arising from or related to a breach of duty to the corporation or its shareholders, which indemnification will not be exclusive of any other rights to which agents of the Company may be entitled under any other provision of the Bylaws, agreements, vote of shareholders or disinterested directors or pursuant to the laws of the State of California. 11 Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers or persons controlling the registrant pursuant to the foregoing provisions, the registrant has been informed that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is therefore unenforceable. 12 TABLE OF CONTENTS Page ---- AVAILABLE INFORMATION.............................................. 2 INFORMATION INCORPORATED BY REFERENCE.............................. 2 THE COMPANY........................................................ 3 RISK FACTORS....................................................... 3 USE OF PROCEEDS.................................................... 4 THE SELLING SHAREHOLDERS........................................... 5 PLAN OF DISTRIBUTION............................................... 9 RECENT DEVELOPMENTS................................................ 10 LEGAL MATTERS...................................................... 11 EXPERTS............................................................ 11 DISCLOSURE OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES ACT LIABILITIES................................... 11 INFORMATION NOT REQUIRED IN PROSPECTUS............................. II-1 SIGNATURES......................................................... II-4 INDEX TO EXHIBITS.................................................. II-5 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. The expenses in connection with the issuance and distribution of the securities being registered, other than underwriting discounts and commissions, are estimated as follows: Securities and Exchange Commission Registration Fee........ $ 1,977 Legal fees and expenses*................................... $ 7,500 Accounting fees and expenses*.............................. $ 8,400 Printing expenses/Transfer agent's fees*................... $ 7,000 Total*.............................................. $24,877 - --------------- * Estimated. ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS Section 317 of the California General Corporations Law ("CGCL") provides that a corporation shall have the power to indemnify any person who was or is a party or is threatened to be made a party to any proceeding (other than an action by or in the right of the corporation to procure a judgment in its favor) by reason of the fact that the person is or was an agent of the corporation, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred in connection with the proceeding if that person acted in good faith and in a manner the person reasonably believed to be in the best interests of the corporation and, in the case of a criminal proceeding, had no reasonable cause to believe the conduct of the person was unlawful. The termination of any proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in the best interests of the corporation or that the person had reasonable cause to believe that the person's conduct was unlawful. Article 5 of the Company's Amended and Restated Articles of Incorporation provides as follows: The liability of the directors of this corporation for monetary damages shall be eliminated to the fullest extent permissible under the laws of California. (a) Whether by bylaw, agreement or otherwise, the agents of this corporation may be provided indemnity by this corporation in excess of the indemnity expressly permitted by Section 317 of the California Corporations Code for those agents of this corporation for breach of duty to this corporation and its stockholders provided, however, that an agent may not be indemnified for any acts or omissions or transactions from which a director may not be relieved of liability pursuant to this Article or as to circumstances in which indemnify is expressly prohibited by Section 317 of the CGCL. (b) As used in this Article the term "agents" includes any person who is or was a director, officer, employee or other agent of this corporation, or is or was serving at the request of this corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was the predecessor corporation of this corporation or of another enterprise at the request of such predecessor corporation. II-1 Section 5.11 of the Company's Bylaws provides as follows: 5.11.1 The agents of the corporation are hereby indemnified and held harmless from all liability arising from or related to a breach of duty to the corporation of its stockholders. 5.11.2 The indemnification provided in the foregoing paragraph is not exclusive of any other rights which the agents of the corporation may be entitled under any other provision of these bylaws, agreement, vote of shareholders or disinterested directors or otherwise, or pursuant to the laws of California. Such indemnification shall continue as to a person who has ceased to be an agent and shall inure to the benefit of the heirs, executors and administrators of the person. Nothing contained in the foregoing paragraph 5.11.1 above shall affect any right to indemnification to which persons other than agents of the corporation are entitled by agreement or otherwise. 5.11.3 As used in the foregoing paragraphs the term "agents" includes any person who is or was a director, officer, employee or other agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was a predecessor corporation of the corporation or of another enterprise at the request of such predecessor corporation. ITEM 16. EXHIBITS. 3.1 Amended and Restated Articles of Incorporation filed November 10, 1997 3.2.1* Bylaws, as amended 3.2.2 Certificate of Amendment to Bylaws, effective as of August 5, 1997. 5.1 Opinion of Counsel as to legality of Common Stock 10.1** 1997 Stock Option Plan 10.2+ Voting Rights Agreement, dated August 4, 1997 by and among Berg & Berg Enterprises, Inc. and certain purchasers of the Company's Common Stock 10.3 Voting Rights Agreement, dated November 12, 1997 by and among Berg & Berg Enterprises, Inc. and certain purchasers of the Company's Common Stock 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (included in the opinion filed as Exhibit 5.1 to this Registration Statement) 24.1 Power of Attorney (included in the signature page to the Registration Statement) 99.1** Stock Purchase Agreement, dated November 12, 1997 by and among the Company and the purchasers named therein 99.2++ Stock Purchase Agreement, dated May 27, 1997, as amended July 2, 1997 by and among the Company and the purchasers named therein 99.3 Updated Selected Consolidated Financial Data * Previously filed with the Commission on May 17, 1991 as an exhibit to the Company's Registration Statement (Registration #33-40664). ** Previously filed with the Commission on October 21, 1997 as an exhibit to the Company's Schedule 14A. + Previously filed with the Commission on September 17, 1997 as an exhibit to the Company's Form 8-K. ++ Previously filed with the Commission as an exhibit to the Company's Schedule 14A, as amended, on July 8, 1997. II-2 ITEM 17. UNDERTAKINGS The undersigned Registrant hereby undertakes: (a) (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 of 1933; (ii) To reflect in the prospectus any facts 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 maximum 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; (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; (2) 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 of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 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 this 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) The undersigned Registrant hereby undertakes to deliver or cause to be delivered with the prospectus, to each person to whom the prospectus is sent or given, the latest annual report, to security holders that is incorporated by reference in the prospectus and furnished pursuant to and meeting the requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act and, where interim financial information required to be presented by Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or cause to be delivered to each person to whom the prospectus is sent or given, the latest quarterly report that is specifically incorporated by reference in the prospectus to provide such interim financial information. Insofar as indemnification for liabilities under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the provisions described in Item 15 above, or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission and indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable. In the event that a claim of 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 a 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 of 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. II-3 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this amendment to registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Cupertino, State of California on November 26, 1997. MISSION WEST PROPERTIES By: /s/ Carl E. Berg ------------------------------------------- Carl E. Berg Chief Executive Officer and President KNOW ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below constitutes and appoints Carl E. Berg and Michael L. Knapp, or either of them, each with the power of substitution, his or her attorney-in- fact, to sign any amendments to this Registration Statement and to file the same, with exhibits thereto and other documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying and confirming all that each of said attorney-in-fact, or his or her substitute, may do or choose to be done by virtue hereof. Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities indicated, effective November 26, 1997. Signature Title - --------- ----- /s/ Carl E. Berg __________________________ Chief Executive Officer, Carl E. Berg President, Director /s/ Michael L. Knapp __________________________ Chief Financial Officer, Michael L. Knapp Secretary, Director /s/ Michael Orosky __________________________ Director Michael Orosky /s/ Roger Kirk __________________________ Director Roger Kirk /s/ Keith Cocita __________________________ Director Keith Cocita II-4 EXHIBIT INDEX
Exhibit Number Description - -------------- ----------- 3.1 Amended Restated Articles of Incorporation filed November 10, 1997 3.2.1* Bylaws, as amended 3.2.2 Certificate of Amendment to Bylaws, effective as of August 5, 1997 5.1 Opinion of Counsel as to legality of Common Stock 10.1** 1997 Stock Option Plan 10.2+ Voting Rights Agreement, dated August 4, 1997, by and among Berg & Berg Enterprises and certain purchasers of the Company's Common Stock 10.3 Voting Rights Agreement, dated November 12, 1997, by and among Berg & Berg Enterprises and certain purchasers of the Company's Common Stock 23.1 Consent of Independent Accountants 23.2 Consent of Counsel (included in the opinion filed as Exhibit 5.1 to this Registration Statement 24.1 Power of Attorney (included in the signature page to this Registration Statement) 99.1** Stock Purchase Agreement dated as of November 12, 1997 by and among the Company and the purchasers named therein 99.2++ Stock Purchase Agreement dated as of May 27, 1997, as amended July 2, 1997 by and among the Company and the purchasers named therein 99.3 Updated Selected Consolidated Financial Data
* Previously filed with the Commission on May 17, 1991 as an exhibit to the Company's Registration Statement (Registration #33-40664). ** Previously filed with the Commission as an exhibit to the Company's Schedule 14A filed on October 21, 1997. + Previously filed with the Commission as an exhibit to the Company's Form 8-K filed on September 17, 1997. ++ Previously filed with the Commission as an exhibit to the Company's Schedule 14A, as amended, on July 8, 1997. II-5 EX-3.1 2 EXHIBIT 3.1 --------------------------------------------- Filed in the Office of the Secretary of State of the State of California November 10, 1997 --------------------------------------------- Bill Jones, Secretary of State CERTIFICATE OF AMENDMENT AND RESTATEMENT OF ARTICLES OF INCORPORATION OF MISSION WEST PROPERTIES The undersigned certify that: 1. They are the president and the secretary, respectively, of Mission West Properties, a California corporation. 2. The Articles of Incorporation, as amended, of this corporation shall be amended and restated in their entirety to read as set forth in EXHIBIT A attached hereto. 3. The attached Amended and Restated Articles of Incorporation have been duly approved by the board of directors. 4. The attached Amended and Restated Articles of Incorporation have been duly approved by the required vote of shareholders in accordance with Section 902, California Corporations Code. The total number of outstanding shares of the corporation is 7,533,121. The number of shares voting in favor of the amendment equaled or exceeded the vote required. The percentage vote required was more than 50%. We further declare under penalty of perjury under the laws of the State of California that the matters set forth in this certificate are true and correct of our own knowledge. DATE: November 10, 1997 /s/ Carl E. Berg --------------------------- Carl E. Berg, President /s/ Michael L. Knapp --------------------------- Michael L. Knapp, Secretary [SEAL] -OFFICE OF THE SECRETARY OF STATE- EXHIBIT A AMENDED AND RESTATED ARTICLES OF INCORPORATION OF MISSION WEST PROPERTIES ARTICLE 1. The name of this corporation is "Mission West Properties." ARTICLE 2. The purpose of this corporation is to engage in any lawful act or activity for which a corporation may be organized under the General Corporation Law of California other than the banking business, the trust company business or the practice of a profession permitted to be incorporated by the California Corporations Code. ARTICLE 3. This corporation is authorized to issue two classes of stock to be designated, respectively, Common Stock ("Common Stock") and Preferred Stock ("Preferred Stock"). The number of shares of Common Stock authorized to be issued is Two Hundred Million (200,000,000) and the total number of shares of Preferred Stock authorized to be issued is Twenty Million (20,000,000). The Preferred Stock may be issued from time to time in one or more series. The Board of Directors of this corporation is hereby authorized, within the limits and restrictions stated in these Amended and Restated Articles of Incorporation, to determine or alter the rights, preferences, privileges and restrictions granted to or imposed upon any wholly unissued series of Preferred Stock, and within the limits stated herein or in any resolution or resolutions of the Board of Directors originally fixing the number of shares constituting any such series and the designation thereof, to increase or decrease the number of shares of any series subsequent to the issue of shares of that series, but not below the number of shares of such series then outstanding. In case the number of shares of any series shall be so decreased, the shares constituting such decrease shall resume the status which they had prior to the adoption of the resolution originally fixing the number of shares of such series. On the effective date of these Amended and Restated Articles of Incorporation, all outstanding shares of Common Stock held by each holder of record on such date shall be automatically combined at the rate of one-for-thirty without any further action on the part of the holders thereof or this corporation (the "Reserve Split"). No fractional shares shall be issued as a result of the Reverse Split unless such action would result in the cancellation of more than ten percent (10%) of the outstanding shares of Common Stock. This corporation will pay cash for all fractional shares in an amount equal to a price per share of Fifteen Cents ($0.15) prior to the combination. ARTICLE 4. To the fullest extent permissible under the General Corporation Law of California, this corporation is authorized to issue debt securities convertible into other debt securities or into shares of the corporation within such time and upon the happening of one or more specified events and upon such terms and conditions as are fixed by the Board of Directors. ARTICLE 5. The liability of the directors of this corporation for monetary damages shall be eliminated to the fullest extent permissible under the laws of California. (a) Whether by bylaw, agreement or otherwise, the agents of this corporation may be provided indemnity by this corporation in excess of the indemnity expressly permitted by Section 317 of the California Corporations Code for those agents of this corporation for breach of duty to this corporation and its stockholders provided, however, that an agent may not be indemnified for any acts or omissions or transactions from which a director may not be relieved of liability pursuant to this Article or as to circumstances in which indemnity is expressly prohibited by Section 317 of the California Corporations Code. (b) As used in this Article the term "agents" includes any person who is or was a director, officer, employee or other agent of this corporation, or is or was serving at the request of this corporation as a director, officer, employee or agent of another foreign or domestic corporation, partnership, joint venture, trust or other enterprise, or was a director, officer, employee or agent of a foreign or domestic corporation which was the predecessor corporation of this corporation or of another enterprise at the request of such predecessor corporation. EX-3.2-2 3 EXHIBIT 3.2.2 CERTIFICATE OF AMENDMENT TO BYLAWS OF MISSION WEST PROPERTIES The undersigned, the duly appointed and acting Secretary of Mission West Properties, a California corporation (the "Company"), hereby certifies that the following resolution was adopted by the Board of Directors of the Company at a meeting duly held on August 5, 1997 and that the same has not since been rescinded or modified: RESOLVED, that pursuant to Paragraph 3.2.1 of the Bylaws of the Company, the exact number of Directors of the Company is hereby set at five (5) until changed in accordance with said Paragraph 3.2.1. IN WITNESS WHEREOF, this Certificate of Amendment to Bylaws has been executed this 2nd day of September, 1997. /s/ Katrina L. Thompson ------------------------------ Katrina L. Thompson, Secretary EX-5.1 4 EXHIBIT 5.1 [Graham & James LLP Letterhead] November 25, 1997 Mission West Properties 10050 Bandley Drive Cupertino, CA 95014 RE: REGISTRATION STATEMENT ON FORM S-3 Ladies and Gentlemen: In connection with the registration of 1,449,995 shares of common stock, no par value (the "Common Shares") of Mission West Properties (the "Company") with the Securities and Exchange Commission on a Registration Statement on Form S-3 (the "Registration Statement"), relating to the sales, if any, of the Common Shares by the selling shareholders, we have examined such documents, records and matters of law as we have considered relevant. Based upon such examination, it is our opinion that the Common Shares are legally issued, fully paid, and nonassessable. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the reference to our firm in the Registration Statement. Very truly yours, Graham & James LLP EX-10.3 5 EXHIBIT 10.3 VOTING RIGHTS AGREEMENT This Voting Rights Agreement (the "Agreement") is made and entered into as of this 12th day of November, 1997 by and among each of the persons listed on Appendix I to the Stock Purchase Agreement, dated of even date herewith (the "Purchase Agreement") who is acquiring at least 22,500 shares of the common stock of Mission West Properties (the "Company") pursuant to the Purchase Agreement (the "Investors"), and Berg & Berg Enterprises, Inc. ("BBE"). R E C I T A L S WHEREAS, the Company and the Investors entered into the Purchase Agreement pursuant to which the Company agreed to sell and issue 1,250,000 shares of the Company's Common Stock to the Investors; 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 to the Company by each Investor (the "Purchase"); and WHEREAS, in connection with the Purchase, the Investors and Berg & Berg Enterprises, Inc., a major shareholder of the Company, 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 shares represented by this certificate are subject to the terms and conditions of a Voting Rights Agreement, dated as of November 12, 1997, all the terms of which are incorporated herein by reference. The Voting Rights Agreement shall terminate or become inapplicable as to shares represented by this certificate under the circumstances described therein. 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. Each Investor understands and agrees 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. 1.6 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 in such event this Agreement shall terminate only as to the Shares so sold; (ii) any sale of the shares pursuant to Rule 144 promulgated under the Securities Act, but in such event this Agreement shall terminate 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 such party's 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 its 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. 2 SIGNATURE PAGE TO VOTING RIGHTS AGREEMENT 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 transmitted by facsimile, each of which when so executed and transmitted shall be deemed to be an original, and such counterparts shall together constitute one and the same instrument. 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: /s/ Carl E. Berg --------------------------------------- President and Chief Executive Officer ------------------------------------- Please print name and title Address: 10050 Bandley Drive Cupertino, CA 95014 INVESTORS: --------------------------------------- By: ------------------------------------ ---------------------------------- Please print name and title No. of Shares ------------------------- (Complete and sign only if you are acquiring at least 22,500 shares of Mission West Properties Common Stock) 3 EX-23.1 6 EXHIBIT 23.1 EXHIBIT 23.1 ------------ CONSENT OF INDEPENDENT ACCOUNTANTS We hereby consent to the incorporation by reference in the Prospectus constituting part of this Registration Statement on Form S-3 of our report dated February 11, 1997 appearing on page 8 of Mission West Properties' Annual Report on Form 10-K for the year ended November 30, 1996. We also consent to the reference to us under the heading "Experts" in such Prospectus. PRICE WATERHOUSE LLP San Diego, California November 24, 1997 EX-99.3 7 EXHIBIT 99.3 EXHIBIT 99.3 ------------ UPDATED SELECTED CONSOLIDATED FINANCIAL DATA The following selected financial data as of and for the years ended November 30, 1996, 1995, 1994, 1993 and 1992 has been derived from, and is qualified by reference to, the audited financial statements of the Company. The selected financial data as of and for the nine months ended August 31, 1997 has been prepared on a basis consistent with the audited financial statements and derived from unaudited financial statements which, in the opinion of management, include all adjustments (consisting only of normal recurring adjustments) necessary for a fair presentation of the financial position and results of operations of the company for the unaudited interim periods. On November 10, 1997, the shareholders of the Company approved a 1 for 30 reverse stock split (the "Reverse Split"). All share and per share data in the schedule below has been retroactively restated to effect to the Reverse Split.
Nine Months Ended Years Ended November 30 ----------------- ----------------------- August 31, 1997 1996 1995 1994 1993 1992 --------------- ---- ---- ---- ---- ---- (unaudited) Results of Operations: Revenues $52,228 $7,526 $7,926 $9,297 $7,142 $7,297 Net Income (Loss) 3,367 35 52 (1,943) (1,065) (824) Net Income (Loss) per Share 67.34 0.71 1.13 (39.65) (21.73) (16.82) Financial Condition: Total Assets $5,989 $46,324 $47,570 $50,963 $56,236 $59,731 Notes Payable -- 30,753 31,967 34,382 35,938 38,229 Shareholders' Equity per Share (11.39) 310.30 309.86 300.67 338.01 361.25 Cash Dividends Declared per Share 9.00 0.00 0.00 0.00 1.49 10.52 Average Shares Outstanding 50 49 46 49 49 49
19 -----END PRIVACY-ENHANCED MESSAGE-----