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