<PAGE>
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. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
=========================================================================================
<S> <C> <C> <C> <C>
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.
</TABLE>
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.
<PAGE>
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.
<PAGE>
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.
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
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)
-----------
<S> <C> <C> <C>
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 *
</TABLE>
- -----------------------
(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
<PAGE>
<TABLE>
<CAPTION>
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)
-----------
<S> <C> <C> <C>
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 *
</TABLE>
- -------------------
(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
<PAGE>
<TABLE>
<CAPTION>
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)
-----------
<S> <C> <C> <C>
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 *
</TABLE>
- --------------------
(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
<PAGE>
<TABLE>
<CAPTION>
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)
-----------
<S> <C> <C> <C>
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 *
</TABLE>
- ------------------
(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
<PAGE>
<TABLE>
<CAPTION>
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)
-----------
<S> <C> <C> <C>
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 *
</TABLE>
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
<PAGE>
- 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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit Number Description
- -------------- -----------
<S> <C>
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
</TABLE>
* 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
<PAGE>
---------------------------------------------
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
<PAGE>
[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.
<PAGE>
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
<PAGE>
[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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<TABLE>
<CAPTION>
Nine Months Ended Years Ended November 30
----------------- -----------------------
August 31, 1997 1996 1995 1994 1993 1992
--------------- ---- ---- ---- ---- ----
(unaudited)
<S> <C> <C> <C> <C> <C> <C>
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
</TABLE>
19
