As filed with the Securities and Exchange Commission on June 17, 1998.
Registration Statement No. 333-52835
- - --------------------------------------------------------------------------------
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
AMENDMENT NO. 1
TO
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
----------------------
MISSION WEST PROPERTIES
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-2635431 6798
(State or other (I.R.S. Employee (Primary Standard
jurisdiction of incorporation Identification No.) Industrial Classification
or organization) Code Number)
10050 Bandley Drive, Cupertino, California 95014
(408) 725-0700
(Address, including ZIP Code and telephone number of
registrant's principal executive offices)
MR. CARL E. BERG
10050 Bandley Drive
Cupertino, California 95014
----------------------
(Name, address and telephone number
of agent for service)
----------------------
Copies to:
ALAN B. KALIN
KATHI A. RAWNSLEY
Graham & James LLP
600 Hansen Way
Palo Alto, California 94304
Tel: (650) 856-6500
Fax: (650) 856-3619
Approximate date of commencement of proposed sale of the
securities to the public:
AS SOON AS PRACTICABLE FOLLOWING THE EFFECTIVE DATE
OF THIS REGISTRATION STATEMENT.
If the securities being registered on this Form are being offered in
connection with the formation of a holding company and there is compliance
with General Instruction G, check the following box. [ ]
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 the earlier effective
registration statement for the same offering. [ ] ______________
If this form is a post-effective amendment filed pursuant to Rule 462(b)
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. [ ] ___________________
----------------------
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.
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 PROXY STATEMENT/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.
EXPLANATORY NOTE
This Amendment No. 1 is only to file Exhibits 10.15, 10.16 and 10.17.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
2.1* Agreement and Plan of Merger, dated as of ___________,
between the Company and Mission West-Maryland
3.1.1+ Amended and Restated Articles of Incorporation of the Company
3.1.2+ Bylaws, as amended, of the Company
3.2.1* Articles of Amendment and Restatement of Mission
West-Maryland charter
3.2.2* Bylaws of Mission West-Maryland
5.1* Opinion of Graham & James LLP regarding the validity of the
securities being registered
5.2* Opinion of Ballard Spahr Andrews & Ingersoll L.L.P. regarding
merger of the Company and Mission West-Maryland
II-1
8.1* Opinion of Graham & James LLP regarding certain tax matters
10.1* Form of Agreement of Limited Partnership of Operating
Partnership
10.2* Form of Exchange Rights Agreement between the Company and the
Limited Partners
10.3.1+ 1997 Stock Option Plan of the Company
10.3.2* Form of Incentive Stock Option Agreement
10.3.3* Form of Nonstatutory Stock Option Agreement
10.3.4* Form of Director's Stock Option Agreement
10.4* Acquisition Agreement, dated as of May 14, 1998 between the
Company, MWP, MWP I, MWP II, MWP III and the Limited Partners
10.5.1* Stock Purchase Agreement, dated as of May 4, 1998 between the
Company and the purchasers of Common Stock in a private
placement of 5,800,000 shares
10.5.2* Stock Purchase Agreement, dated as of May 4, 1998 between the
Company and the purchasers of Common Stock in a private
placement of 695,058 shares
10.7* Pending Projects Acquisition Agreement, dated as of
______________, among the Company, the Operating Partnership
and the members of the Berg Group
10.8* Berg Land Holdings Option Agreement, dated as of
______________, between the Company and certain members of
the Berg Group
10.9* Berg & Berg Enterprises, Inc. Sublease Agreement
10.10.1* Incentive Stock Option Agreement for Michael J. Anderson
(400,000 shares of Common Stock)
10.10.2* Incentive Stock Option Agreement for Michael J. Anderson
(200,000 shares of Common Stock)
10.11* Restricted Stock Purchase Agreement for Michael J. Anderson
(200,000 shares of Common Stock)
10.12* Promissory Note from Michael J. Anderson
II-2
10.13* Incentive Stock Option Agreement for Bradley A. Perkins
10.14* Incentive Stock Option Agreement for Marianne K. Aguiar
10.15 Lease Ageement with Apple Computer, Inc.
10.16 Lease Agreement with Cisco Systems, Inc.
10.17 Lease Agreement with Amdahl Corporation
23.1* Consent of Graham & James LLP (included in the opinion filed
as Exhibit 5.1 to this Registration Statement)
23.2* Consent of Ballard Spahr Andrews & Ingersoll L.L.P. (included
in the opinion filed as Exhibit 5.2 to this Registration
Statement)
23.3** Consent of Price Waterhouse LLP
23.4** Consent of Coopers & Lybrand LLP
23.5* Consent of BT Commercial
24.1** Powers of Attorney
99.1* Form of Proxy for the Company's Shareholders
99.2* Form of Letter to the Company's Shareholders
99.3** Form of Notice to the Company's Shareholders
+ Incorporated by reference
* To be filed by amendment.
** Previously filed
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant has
duly caused this to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Cupertino, State of
California on June 17, 1998.
MISSION WEST PROPERTIES
By: /s/ Carl E. Berg
----------------------------------
Carl E. Berg
Chairman of the Board, Chief Executive
Officer, President and Chief Financial
Officer
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 June 17, 1998.
SIGNATURE TITLE
/s/ Carl E. Berg Chairman of the Board, Chief Executive
- - ---------------------------------- Officer, President, Chief Financial
Carl E. Berg Officer, Director
/s/ Carl E. Berg, attorney-in-fact Vice President, Chief Operating Officer and
- - ---------------------------------- Director
Michael J. Anderson
/s/ Carl E. Berg, attorney-in-fact Director
- - ----------------------------------
John C. Bolger
II-4
EXHIBIT INDEX
EXHIBIT NO. DESCRIPTION
- - ----------- -----------
2.1* Agreement and Plan of Merger, dated as of ___________,
between the Company and Mission West-Maryland
3.1.1+ Amended and Restated Articles of Incorporation of the Company
3.1.2+ Bylaws, as amended, of the Company
3.2.1* Articles of Amendment and Restatement of Mission
West-Maryland charter
3.2.2* Bylaws of Mission West-Maryland
5.1* Opinion of Graham & James LLP regarding the validity of the
securities being registered
5.2* Opinion of Ballard Spahr Andrews & Ingersoll L.L.P. regarding
merger of the Company and Mission West-Maryland
8.1* Opinion of Graham & James LLP regarding certain tax matters
10.1* Form of Agreement of Limited Partnership of Operating
Partnership
10.2* Form of Exchange Rights Agreement between the Company and the
Limited Partners
10.3.1+ 1997 Stock Option Plan of the Company
10.3.2* Form of Incentive Stock Option Agreement
10.3.3* Form of Nonstatutory Stock Option Agreement
10.3.4* Form of Director's Stock Option Agreement
10.4* Acquisition Agreement, dated as of May 14, 1998 between the
Company, MWP, MWP I, MWP II, MWP III and the Limited Partners
10.5.1* Stock Purchase Agreement, dated as of May 4, 1998 between the
Company and the purchasers of Common Stock in a private
placement of 5,800,000 shares
10.5.2* Stock Purchase Agreement, dated as of May 4, 1998 between the
Company and the purchasers of Common Stock in a private
placement of 695,058 shares
10.7* Pending Projects Acquisition Agreement, dated as of
______________, among the Company, the Operating Partnership
and the members of the Berg Group
10.8* Berg Land Holdings Option Agreement, dated as of
______________, between the Company and certain members of
the Berg Group
10.9* Berg & Berg Enterprises, Inc. Sublease Agreement
10.10.1* Incentive Stock Option Agreement for Michael J. Anderson
(400,000 shares of Common Stock)
10.10.2* Incentive Stock Option Agreement for Michael J. Anderson
(200,000 shares of Common Stock)
10.11* Restricted Stock Purchase Agreement for Michael J. Anderson
(200,000 shares of Common Stock
10.12* Promissory Note from Michael J. Anderson
10.13* Incentive Stock Option Agreement for Bradley A. Perkins
10.14* Incentive Stock Option Agreement for Marianne K. Aguilar
10.15 Lease Agreement with Apple Computer, Inc.
10.16 Lease Agreement with Cisco Systems, Inc.
10.17 Lease Agreement with Amdahl Corporation
23.1* Consent of Graham & James LLP (included in the opinion filed
as Exhibit 5.1 to this Registration Statement)
23.2* Consent of Ballard Spahr Andrews & Ingersoll L.L.P. (included
in the opinion filed as Exhibit 5.2 to this Registration
Statement)
23.3** Consent of Price Waterhouse LLP
23.4** Consent of Coopers & Lybrand LLP
23.5* Consent of BT Commercial
24.1** Powers of Attorney
99.1* Form of Proxy for the Company's Shareholders
99.2* Form of Letter to the Company's Shareholders
99.3** Form of Notice to the Company's Shareholders
+ Incorporated by reference
* To be filed by amendment.
** Previously filed