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Filed in the Office of the Secretary of State
of the State of California
November 10, 1997
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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
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Carl E. Berg, President
/s/ Michael L. Knapp
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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.