STOCK PURCHASE AGREEMENT - INGALLS & SNYDER LLC PRIVATE PLACEMENT
THIS STOCK PURCHASE AGREEMENT (this "Agreement") is made as of the ____
day of ________, 1998, by and between the investors identified on Appendix I
to this Agreement (the "Schedule of Purchasers") (individually a "Purchaser"
and collectively the "Purchasers") and Mission West Properties, a California
corporation (the "Company").
RECITALS
WHEREAS, the Company intends to submit to its shareholders for
approval: an acquisition by the Company of the general partnership interest
in four limited partnerships in which the limited partners will receive the
right to exchange limited partner interests for Common Stock (the "Berg
Acquisition"); the purchase and sale of up to 5,777,778 shares (the "Shares")
of common stock of the Company (the "Common Stock") pursuant to this
Agreement (the "Private Placement"); and the merger of the Company with and
into Mission West Properties, Inc., a Maryland corporation ("Mission
West-Maryland") which will elect to become a Real Estate Investment Trust
(the "Reincorporation Merger"), (collectively the "Proposed Transactions");
WHEREAS, the Company intends to file a Registration Statement on Form
S-4 (the "Registration Statement") to register shares of Common Stock and
other securities to be issued by Mission West-Maryland in exchange for
securities of the Company pursuant to the Securities Act of 1933, as amended
(the "Securities Act') and will deliver to the shareholders of the Company
the proxy statement/prospectus (the "Proxy Statement/Prospectus") included in
such Registration Statement in connection with the special meeting of
shareholders at which the shareholders will be asked to approve the purchase
and sale of the Shares (the "Special Meeting");
WHEREAS, the Company's confidential Private Placement Memorandum dated
as of April __, 1998 (the "Private Placement Memorandum"), has been delivered
to each of the Purchasers in connection with the Private Placement;
WHEREAS, the firm of Ingalls & Snyder LLC, a registered broker dealer
("Ingalls & Snyder") has acted as the placement agent for the Purchasers in
connection with this Private Placement of Shares; and
WHEREAS, subject to shareholder approval, the Purchasers wish to
purchase from the Company, and the Company wishes to sell to the Purchasers,
the Shares pursuant to the terms of the Agreement;
AGREEMENT
NOW, THEREFORE the Purchasers and the Company agree as follows:
1. AUTHORIZATION AND SALE OF COMMON STOCK.
1.1 AUTHORIZATION OF THE SHARES. The Board of Directors of the Company has
approved and authorized the Shares for issuance.
1.2 SALE OF THE SHARES. Subject to the terms and conditions hereof, on the
Closing Date (as defined in Section 2.1), the Company will issue and sell to
each Purchaser, and each Purchaser agrees, severally, to purchase from the
Company, the number of Shares of Common Stock specified opposite such
Purchaser's name on the Schedule of Purchasers, as amended from time to time,
at a purchase price of Four Dollars and Fifty Cents ($4.50) per share for the
aggregate purchase price set forth opposite each such Purchaser's name on the
Schedule of Purchasers.
1.3 SEPARATE AGREEMENTS. The Company's agreement with each Purchaser is a
separate agreement, and the sale of the shares of Common Stock to each
Purchaser is a separate sale.
1.4 PLACEMENT AGENT COMMISSION. In addition to the purchase price paid for
the Shares, each Purchaser agrees, severally, to pay to Ingalls & Snyder a
fee of Five Cents ($.05) per share on the Closing Date (as defined in Section
2.1) for each Share that Purchaser agrees to purchase from the Company
pursuant to this Agreement.
2. CLOSING DATE; DELIVERY.
2.1 CLOSING DATE. Subject to shareholder approval, the closing of the
purchase and sale of the Shares hereunder (the "Closing") with each of the
Purchasers shall be held at the offices of the Company at 10050 Bandley
Drive, Cupertino, California on the first business day immediately following
the Special Meeting, or at such other time and place to which the Company and
Purchasers of a majority of the Shares may agree upon orally or in writing
(the "Closing Date").
2.2 DELIVERY. At the Closing, the Company will deliver to each Purchaser, a
certificate representing the Shares to be purchased by such Purchaser from
the Company (which shall be issued in such Purchaser's name as set forth on
the Schedule of Purchasers) against payment of the applicable purchase price
(as set forth on the Schedule of Purchasers) in immediately available funds
by cashier's check or by wire transfer no later than the 5:00 p.m. on the
Closing Date to the Company at Mellon Bank, Pittsburgh, Pennsylvania, ABA
#043 000261, for credit to: Merrill Lynch, Account #101 1730; for further
credit to: Mission West Properties, Account #291 07M35. In addition, each
Purchaser will deliver to Ingalls & Snyder an amount equal to Five Cents
($.05) per share for each Share purchased by Purchaser hereunder in
immediately available funds by cashier's check or by wire transfer no later
than the 5:00 p.m. on the Closing Date to ____________________. Upon the
consummation of the Reincorporation Merger and after the SEC has declared the
Registration Statement effective, each of the Shares shall be exchanged
automatically for one share of Common Stock of Mission West-Maryland in the
manner described in the Registration Statement.
3. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to each Purchaser that, subject to
and except as set forth in a Schedule of Exceptions (the "Schedule of
Exceptions") delivered to the Purchasers, specifically identifying the
relevant subsections hereof:
3.1 ORGANIZATION AND STANDING. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of
California.
The Company has all requisite corporate power and authority to carry on its
business as presently conducted and as proposed to be conducted. The Company
is duly qualified to transact business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a material
adverse effect on its business or properties.
3.2 SUBSIDIARIES. Other than Mission West Executive Aircraft Center, Inc.,
MIT Realty, Inc., and Mission West Properties, Inc., a Maryland corporation
(the "Company Subsidiaries") which are wholly owned by the Company, the
Company does not own or control, directly or indirectly, any interest in any
other corporation, association, partnership or other business entity. As used
in this Section 3, references to the Company include the Company
Subsidiaries. The Company is not a participant in any joint venture,
partnership, or similar arrangement.
3.3 CAPITALIZATION. The authorized capital stock of the Company as of the
Closing Date will consist of Two Hundred Million (200,000,000) shares of
Common Stock, of which 1,698,535 shares are issued and outstanding. All such
issued and outstanding shares have been duly authorized and validly issued,
are fully paid and nonassessable and have been issued in compliance with all
applicable state and federal laws concerning the issuance of securities. The
Company has reserved Five Million Five Hundred Thousand (5,500,000) shares of
Common Stock for issuance under the Company's 1997 Stock Option Plan (the
"Plan"), of which options to acquire Six Hundred Five Thousand (605,000)
shares have been granted as of the date hereof. The Company has reserved
Five Million Seven Hundred Seventy-Seven Thousand Seven Hundred Seventy-Eight
(5,777,778) shares of Common Stock for issuance hereunder. Except for the
foregoing, and the other securities to be issued in connection with the
Proposed Transactions, there are no outstanding options, warrants, rights
(including conversion or preemptive rights) or agreements for the purchase or
acquisition from the Company of any shares of its capital stock.
3.4 AUTHORIZATION. All corporate action on the part of the Company, its
officers, directors and shareholders necessary for the authorization,
execution and delivery of this Agreement, the performance of all obligations
of the Company hereunder and thereunder, and the authorization, sale and
issuance of the Shares pursuant hereto has been taken or will be taken prior
to the Closing Date. This Agreement, when executed and delivered by the
Company, will constitute a valid and binding obligation of the Company,
enforceable in accordance with its terms, except (i) as limited by applicable
bankruptcy, insolvency, reorganization, moratorium, and other laws of general
application affecting enforcement of creditors' rights generally, and (ii) as
limited by laws relating to the availability of specific performance,
injunctive relief, or other equitable remedies.
3.5 VALID ISSUANCE OF COMMON STOCK. The Shares that are being purchased by
the Purchasers hereunder, when issued, sold and delivered in accordance with
the terms of this Agreement for the consideration expressed herein, will be
duly and validly issued, fully paid, and nonassessable, and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement, and under applicable state and federal securities laws.
3.6 COMPLIANCE WITH OTHER INSTRUMENTS. The Company is not in violation or
default of any term of the Amended and Restated Articles of Incorporation
(the "Articles"), or Bylaws of the Company, nor is the Company in violation
or default of any term of any contract, agreement, instrument, judgment,
decree, order, statute, rule or regulation (collectively, "Instruments and
Laws") to
which the Company is subject and a violation of which would have a material
adverse effect on the condition, financial or otherwise, or operations of the
Company. The execution, delivery and performance of this Agreement, and the
consummation of the transactions pursuant hereto, will not result in a
violation of or be in conflict with the Articles, as amended, or the Bylaws
of the Company or constitute, with or without the passage of time and giving
of notice, a material default under any such Instrument or Law, except where
such violations or defaults, singularly or in the aggregate, would not have a
material adverse effect on the business, operations, property or condition
(financial or otherwise) of the Company, require any consent or waiver (which
has not been obtained) under any such Instrument or Law, or result in the
creation of any lien, encumbrance or charge upon any of the properties or
assets of the Company pursuant to any such Instrument or Law.
3.7 LITIGATION. There are no actions, suits, proceedings or investigations
pending or, to the best of the Company's knowledge, threatened against the
Company.
3.8 GOVERNMENTAL CONSENT, ETC. No consent, approval, order or authorization
of, or registration, qualification, designation, declaration or filing (other
than filing a proxy statement with the SEC with, any federal, state or local
governmental authority on the part of the Company is required in connection
with the consummation of the transactions contemplated by this Agreement.
3.9 COMPANY SEC INFORMATION. As of their respective filing dates (except as
thereafter amended) all documents that the Company has filed with the SEC,
including the Proxy Statement/Prospectus, ("Company SEC Documents") have
complied in all material respects with the applicable requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and none of
the Company SEC Documents has contained any untrue statement of a material
fact or omitted to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading except to the extent
corrected by a subsequently filed Company SEC Document.
3.10 OFFERING. Subject in part to the truth and accuracy of each Purchaser's
representations set forth in Section 4 of this Agreement, the offer, sale and
issuance of the Shares as contemplated by this Agreement are exempt from the
registration requirements under Section 5 of the Securities Act, and neither
the Company nor any authorized agent acting on its behalf will take any
action hereafter that would cause the loss of such exemption.
3.11 TITLE TO PROPERTY AND ASSETS. The Company owns its property and assets
free and clear of all mortgages, loans, liens and encumbrances, except such
encumbrances and liens which arise in the ordinary course of business and do
not materially impair the Company's ownership or use of such property or
assets. With respect to the property and assets it leases, the Company is in
compliance with such leases and, to the best of its knowledge, holds a valid
leasehold interest free of any liens, claims or encumbrances.
3.12 TAX RETURNS AND PAYMENTS. The Company has filed all tax returns and
reports as required by law. All such returns and reports are true and
correct in all material respects. The Company has paid in full all taxes and
other assessments due.
3.13 APPROVAL BY BOARD OF DIRECTORS. The Board of Directors of the Company
has approved this Agreement and all of the transactions contemplated by this
Agreement.
3.14 FINANCIAL STATEMENTS. The Company has delivered true and accurate
copies of the Company's annual report on SEC Form 10-K for the fiscal year
ended December 31, 1997 and the Proxy Statement/Prospectus. The Company shall
furnish copies of the Registration Statement, of the Proxy
Statement/Prospectus forms a part, to all Purchasers requesting the same
prior to the Closing. The financial statements set forth in the SEC Form
10-K and the Proxy Statement/Prospectus are in accordance with the books and
records of the Company and the other entities for which financial information
is presented (the "Berg Entities"), have been prepared in conformity with
generally accepted accounting principles consistently applied (except as
described in the notes included therein), and fairly present the financial
condition of the Company and the Berg Entities as of the dates thereof and
the results of its operations for the periods then ended.
4. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.
Each Purchaser severally represents and warrants to the Company as follows:
4.1 EXISTENCE AND POWER. Purchaser, if a corporation, partnership or limited
liability company, is a corporation, partnership or limited liability company
duly organized, validly existing and in good standing under the laws of the
state under which it was organized, with full power and authority to enter
into this Agreement and to perform its obligations under this Agreement.
4.2 AUTHORIZATION. Purchaser's execution, delivery and performance of this
Agreement, and the consummation by Purchaser of the transactions contemplated
by this Agreement have been duly authorized by all requisite corporate,
partnership or limited liability company action of the Purchaser.
4.3 BINDING EFFECT. This Agreement has been duly executed and delivered by
Purchaser, and constitutes a valid and binding agreement of Purchaser.
4.4 CONSENTS AND APPROVALS; NO VIOLATION. Neither the execution and delivery
of this Agreement by Purchaser nor the consummation by Purchaser of the
transactions contemplated hereby will (a) conflict with or result in any
breach of any provision of the articles of incorporation, bylaws, partnership
agreement or operating agreement of Purchaser; (b) require any filing with,
or the obtaining of any permit, authorization, consent or approval of, any
court or governmental or regulatory authority; (c) to the best knowledge of
Purchaser, result in a default (give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or
provisions of any note, bond, mortgage, indenture, license, agreement, lease
or other instrument or obligation to which Purchaser is a party or by which
Purchaser or any of its assets may be bound, except for defaults (or rights
of termination, cancellation or acceleration) as to which requisite waivers
or consents have been obtained; or (d) to the best knowledge of Purchaser,
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Purchaser; or any of its assets; PROVIDED, that the foregoing
clauses (b), (c) and (d) shall not apply to requirements, defaults or
violations which would not have a material adverse effect on the business,
operations or financial condition of Purchaser.
4.5 BROKERS' FEES. Except for the fee to be paid to Ingalls & Snyder, no
investment banker, broker, finder or other intermediary has been retained by
or is authorized to act on behalf of Purchaser who might be entitled to any
fee or commission from the Company upon consummation of the transactions
contemplated
by this Agreement.
4.6 SUITABILITY. Purchaser is an "accredited investor," as such term is
defined in Rule 501 of Regulation D promulgated under the Securities Act.
4.7 INVESTMENT. Purchaser is acquiring the number of Shares set forth
opposite Purchaser's name on the Schedule of Purchasers for investment for
Purchaser's own account and not with a view to, or for, resale in connection
with, any distribution of the Shares. Purchaser understands that the Shares
have not been registered under the Securities Act by reason of a specific
exemption from the registration provisions of the Securities Act which
depends upon, among other things, the BONA FIDE nature of Purchaser's
investment intent as expressed herein.
4.8 RULE 144. Purchaser acknowledges that, because they have not been
registered under the Securities Act, the Shares constitute "restricted
securities" as defined in Rule 144(a)(3) and must be held indefinitely unless
subsequently registered under the Securities Act or an exemption from such
registration is available. Purchaser is aware of the provisions of Rule 144
promulgated under the Securities Act which permit limited resale of
securities purchased in a private placement subject to the satisfaction of
certain conditions, including, among other things, the existence of a public
market for the securities, the availability of certain current public
information about the issuer, the resale occurring not less than one year
after a party has purchased and paid for the security to be sold, the sale
being through a "broker's transaction" or in transactions directly with a
"market maker" (as provided by Rule 144(f)) and the number of securities
being sold during any three-month period not exceeding specified limitations
(unless the securities satisfy the requirements of Rule 144(k)).
4.9 REIT QUALIFICATION OF THE COMPANY. For the purposes of Section 856(a)(6)
and (h) of the Internal Revenue Code of 1986, as amended (the "Code"), each
Purchaser represents and warrants that upon and as a result of the Purchase's
acquisition of the Shares at the Closing Date: (i) no individual who is a
Purchaser or owns a direct or indirect interest in such Purchaser will own
(within the meaning of Section 544(a) of the Code) more than 10% of the total
value of the Company's outstanding stock (as determined for purposes of
Section 542(a)(2) of the Code); (ii) for purposes of the ownership
attribution rules under Section 856(d)(5) of the Code, Purchaser would not be
deemed to own 50% or more of the value of the Company's outstanding stock;
(iii) no Purchaser which is a qualified trust (within the meaning of Section
856(h)(3)(E) of the Code) will own (within the meaning of Section 544(a) of
the Code) more than 10% of the value of the outstanding stock of the Company;
(iv) Purchaser does not own, directly or indirectly, 10% or more of the total
combined voting power of all classes of stock of any tenant of any of the
properties listed in the Private Placement Memorandum; and (v) Purchaser has
no plan or intention, and has not entered into any agreement or arrangement,
to transfer Shares at any time after the Closing Date such that as a
consequence of the transfer any of the Purchaser's representations and
warranties in clauses (i) through (iv) would cease to be true.
5. COVENANTS OF THE COMPANY.
5.1 INVESTIGATION. Upon reasonable notice, prior to the Closing Date the
Company shall afford to Purchasers or to any of Purchaser's officers,
employees, accountants, counsel and other authorized representatives full and
complete access during normal business hours to its plants, properties,
contracts,
commitments, books and records (including, but not limited, to tax returns)
and to the employees and accountants of the Company responsible for such
matters, and shall use its reasonable best efforts to cause its
representatives to furnish promptly to Purchasers such additional financial
and operating data and other information as any Purchaser or its duly
authorized representatives may from time to time reasonably request.
5.2 CONSENTS AND APPROVALS. Prior to the Closing Date, the Company shall use
its best efforts to obtain the authorizations, consents, orders and approvals
of federal, state and local regulatory bodies and officials, courts and other
third parties that may be necessary for the performance of its obligations
under this Agreement and the consummation of the transactions contemplated by
this Agreement, and shall cooperate fully with each other in seeking promptly
to obtain such authorizations, consents, orders and approvals as may be
necessary for the performance of its obligations pursuant to this Agreement.
6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER.
Except to the extent expressly waived in writing by Purchaser, all
obligations of Purchaser under this Agreement are subject to the fulfillment,
at or before the Closing, of all of the following conditions:
6.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. Each of the
representations and warranties of the Company contained in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though made on and as of such date.
6.2 PERFORMANCE. The Company shall have performed in all material respects
its obligations to be performed on or prior to the Closing pursuant to this
Agreement.
6.3 SHAREHOLDER APPROVAL. The shareholders of the Company shall have
approved the purchase and sale of the Shares at the Special Meeting.
6.4 LISTING REQUIREMENTS. The Shares shall have been listed with the
American Stock Exchange and the Pacific Exchange, subject to shareholder
approval of the purchase and sale of the Shares.
7. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY.
Except to the extent expressly waived in writing by the Company, the
obligations of the Company set forth in this Agreement are subject to the
fulfillment, at or before the Closing, of all of the following conditions:
7.1 REPRESENTATIONS AND WARRANTIES TRUE AT CLOSING. Each of the
representations and warranties of each Purchaser contained in this Agreement
shall be true in all material respects on and as of the Closing Date with the
same effect as though made on and as of such date.
7.2 PERFORMANCE. Each Purchaser shall have performed in all material
respects each of the obligations of such Purchaser to be performed on or
prior to the Closing pursuant to this Agreement.
8. GENERAL.
8.1 SURVIVAL. The covenants, representations and warranties of the parties
to this Agreement shall survive the Closing for a period of one year.
8.2 BINDING EFFECT; BENEFITS; ASSIGNMENT. All of the terms of this Agreement
shall be binding upon, inure to the benefit of and be enforceable by and
against the successors and permitted assigns of the Company and Purchaser.
Nothing in this Agreement, express or implied, is intended to confer upon any
other person any rights or remedies under or by reason of this Agreement
except as expressly indicated in this Agreement. Neither the Company nor
Purchaser shall assign any of their respective rights or obligations under
this Agreement to any other person, firm or corporation without the prior
written consent of the other party to this Agreement.
8.3 FURTHER ACTION. Each of the parties to this Agreement shall execute such
documents and other papers and take such further actions as may be reasonably
required or desirable to carry out the provisions of this Agreement and the
transactions contemplated in this Agreement or, at or after the Closing Date,
to evidence the consummation of the transactions contemplated in this
Agreement. Each of the parties to this Agreement shall take, or cause to be
taken, all actions and to do, or cause to be done, all other things
necessary, proper or advisable to consummate and make effective as promptly
as practicable the transactions contemplated by this Agreement, to satisfy
the conditions to this Agreement and to obtain in a timely manner all
necessary waivers, consents, and approvals and to effect all necessary
registrations and filings.
8.4 GOVERNING LAW. This Agreement shall be governed by the laws of the State
of California without regard to its principles governing conflicts of laws.
8.5 NOTICES. All notices, requests, demands and other communications to be
given pursuant to the terms of this Agreement shall be in writing and shall
be delivered personally, telecopied or sent by nationally recognized
overnight delivery service, and shall be deemed given and effective when so
delivered personally, telecopied or sent, as follows:
(a) If to Purchaser:
At the address set forth in the Schedule of Purchasers.
with a copy to:
Ingalls & Snyder LLC
61 Broadway
New York, New York 10006
Telecopier:
Attention: ___________
(b) If to the Company:
Mission West Properties
10050 Bandley Drive
Cupertino, California 95014
Telecopier: 408/725-1626
Attention: Carl E. Berg
with a copy to:
Graham & James LLP
600 Hansen Way
Palo Alto, California 94304
Telecopier: 650/856-3619
Attention: Alan B. Kalin
Each Purchaser may change its address or telecopier number for purposes
of this Agreement by prior written notice to the Company. The Company may
change its address or telecopier number by prior written notice to the
Purchasers.
8.6 COUNTERPARTS. 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.
8.7 EXPENSES. Purchasers and the Company shall pay their own respective
expenses, costs and fees (including, without limitation, attorneys' and
accountants' fees) incurred in connection with the negotiation, preparation,
execution and delivery of this Agreement and the consummation of the
transactions contemplated by this Agreement.
8.8 ENTIRE AGREEMENT. This Agreement sets forth the entire agreement and
understanding of the Company and Purchasers with respect to the transactions
contemplated by this Agreement, and supersedes all prior agreements,
arrangements and understandings relating to the subject matter of this
Agreement.
8.9 AMENDMENT AND WAIVER. This Agreement may be amended, modified,
superseded or canceled, and any of the terms, covenants, representations,
warranties or conditions of this Agreement may be waived, only by a written
instrument executed by the Company and Purchasers who are record holders of
or subscribers for a majority of the Shares subject to this Agreement, or, in
the case of a waiver, by or on behalf of the party waiving compliance. The
failure of any party at any time to require performance of any provision of
this Agreement shall in no manner affect the right at a later time to enforce
the same. No waiver by any party of any condition or of any breach of any
term, covenant, representation or warranty contained in this Agreement, in
any one or more instances, shall be deemed to be or construed as a further or
continuing waiver of any such condition or of any breach of any such term,
covenant, representation or warranty or any other term, covenant,
representation or warranty set forth in this Agreement.
8.10 HEADINGS. The headings of the sections and paragraphs of this agreement
have been inserted for convenience or reference only and shall in no way
restrict or otherwise modify any of the terms or provisions of this Agreement.
8.11 NO THIRD PARTY BENEFICIARIES. Nothing in this Agreement, express or
implied, is intended to or shall (a) confer on any person other than the
parties hereto and their respective successors or assigns any rights
(including third-party beneficiary rights), remedies, obligations or
liabilities under or by reason of this Agreement or (b) constitute the
parties hereto as partners or as participants in a joint venture. This
Agreement shall not provide third parties with any remedy, claim, liability,
reimbursement, cause of action or other right in excess of those existing
without reference to the terms of this Agreement. No third party shall have
any right, independent of any right that exists irrespective of this
Agreement, under or granted by this Agreement, to bring any suit at law or
equity for any matter governed by or subject to the provisions of this
Agreement. 8.12 RULES OF CONSTRUCTION. The parties hereto agree that they
have been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law,
regulation or rule of construction providing that ambiguities in any
agreement or other document will be construed against the party drafting such
agreement or document.
8.13 SEVERABILITY. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent
jurisdiction to be illegal, void or unenforceable, the remainder of this
Agreement will continue in full force and effect and the application of such
provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT
IN WITNESS WHEREOF, the Company and each Purchaser has executed this
Agreement as of the day and year first above written.
PURCHASER:
(Print or type name of Purchaser)
By:
(signature)
Name:
(Print or type if signing on
Purchaser's behalf)
Title:
(if applicable)
THE COMPANY: MISSION WEST PROPERTIES
By:
(signature)
Name:
(print or type name)
Title:
(if applicable)
APPENDIX I
SCHEDULE OF PURCHASERS
NAME AND ADDRESS OF NUMBER OF SHARES PURCHASE PRICE/OTHER
PURCHASERS CONSIDERATIONS
SUBSCRIPTION
AND REGISTRATION FORM
FOR MISSION WEST PROPERTIES
COMMON STOCK
I. PURCHASE OF COMMON STOCK
A. By executing this Subscription and Registration Form for Mission West
Properties Common Stock (the "Common Stock"), and the counterpart
signature pages to the Stock Purchase Agreement (the "Purchase
Agreement"), the undersigned hereby irrevocably agrees for the benefit
of Mission West Properties, a California corporation (the "Company") (i)
to purchase ______________ shares of the Common Stock of the Company, at
a purchase price of $4.50 per share for a total purchase price of
$_____________ (the "Purchase Price") and (ii) to tender the Purchase
Price at the Closing (as that term is defined in the Purchase Agreement)
by wire transfer no later than the 5:00 p.m., P.D.T., on ______ __, 1998
to Mellon Bank, Pittsburgh, Pennsylvania, ABA #043 000261, for credit
to: Merrill Lynch, Account #101 1730; for further credit to: Mission
West Properties, Account #291 07M35 or other appropriate consideration
approved by the Company in advance.
B. Unless the Company is instructed otherwise in writing by the
undersigned, the Purchase Price will be returned promptly in the event
that for any reason the purchase and sale of the Common Stock subscribed
hereby is not consummated or in the event that the undersigned's
subscription is rejected.
II. REGISTER COMMON STOCK AS FOLLOWS:
A. Corporation, Trust, Other Organization or any other Fiduciary Capacity
______________________________________________________________________
(Name of Corporation, Other Organization or Trustees)
If Trust, date of Trust Instrument:___________________________________
Tax ID Number:________________________________________________________
Number of Shares:_____________________________________________________
B. Individual, Joint Tenants, Tenants in Common, Community Property: (Type
of Ownership)
______________________________________________________________________
(First Name) (Last Name) (M.I.) (Social Security No.)
______________________________________________________________________
(First Name) (Last Name) (M.I.) (Social Security No.)
______________________________________________________________________
(First Name) (Last Name) (M.I.) (Social Security No.)
Number of Shares:_____________________________________________________
(Joint tenancy with rights of survivorship will be presumed unless
otherwise indicated.)
C. Custodian for a Minor:
Number of Shares:_____________________________________________________
______________________________________________________________________
(Custodian's First Name) (Last Name)
______________________________________________________________________
(Minor's First Name) (Last Name) (Minor's Social Security No.)
______________________________________________________________________
Under the Uniform Gifts to Minor Act. (State of Residence of Minor)
Number of Shares:_____________________________________________________
______________________________________________________________________
(Custodian's First Name) (Last Name)
______________________________________________________________________
(Minor's First Name) (Last Name) (Minor's Social Security No.)
______________________________________________________________________
Under the Uniform Gifts to Minor Act. (State of Residence of Minor)
Number of Shares:_____________________________________________________
______________________________________________________________________
(Custodian's First Name) (Last Name)
______________________________________________________________________
(Minor's First Name) (Last Name) (Minor's Social Security No.)
______________________________________________________________________
Under the Uniform Gifts to Minor Act. (State of Residence of Minor)
III. SUBSCRIBER'S NAME AND ADDRESS:
______________________________________________________________________
(Print or type name(s)
______________________________________________________________________
(Street Address)
______________________________________________________________________
(City, State, Country)
______________________________________________________________________
(Telephone Number) (Facsimile Number)
IV. ACKNOWLEDGEMENT AND ACCEPTANCE
The undersigned purchaser(s) hereby acknowledge(s) receipt of the Company's
Private Placement Memorandum and hereby subscribe(s) to purchase shares
of Common Stock of the Company and deliver(s) the following documents to
the Company: (a) a completed and signed Subscription and Registration
Form for Mission West Properties Common Stock, (b) one counterpart
signature page to the Purchase Agreement; (c) a completed Prospective
Investor Questionnaire (for individual investors only) and (d) a signed
Substitute IRS Form W-9.
DATE: BY:
(Signature)
DATE: BY:
(Signature)