MERGER AGREEMENT
AND
PLAN OF MERGER
This Merger Agreement and Plan of Merger ("Agreement") is made and
entered into as of ________ __, 1998 by and between Mission West Properties,
a California corporation ("Mission West-California" or "Parent"), and Mission
West Properties, Inc., a Maryland corporation ("Mission West-Maryland" or
"Surviving Corporation") (collectively, with Mission West-California, the
"Constituent Corporations").
ARTICLE I
THE MERGER
1.1 EFFECTIVE TIME OF THE MERGER. Mission West-California shall merge with
and into Mission West-Maryland (the "Merger") pursuant to Section 1110 of the
California General Corporation Law ("CGCL") and Sections 3-101 et seq. of the
Maryland General Corporation Law ("MGCL"). The Merger shall become effective
upon the filing of the certificate of ownership of Mission West-California,
which incorporates this Agreement, with the Secretary of State of the State of
California and acceptance for record of Articles of Merger by the State
Department of Assessments and Taxation of Maryland ("SDAT") (the "Effective Time
of Merger").
1.2 MERGER AT THE EFFECTIVE TIME. At the Effective Time of the Merger,
Mission West-California shall be merged into Mission West-Maryland, and the
separate corporate existence of Mission West-California shall cease. Mission
West-Maryland shall be the Surviving Corporation.
1.3 EFFECTS OF THE MERGER. The Merger shall have the effects set forth in
Section 1107 of the CGCL and Sections 3-114 of the MGCL. As the Surviving
Corporation in the Merger, Mission West-Maryland shall succeed, without other
transfer, to all the rights and property of Mission West-California and shall be
subject to all of the obligations and liabilities of Mission West-California in
the same manner as if Mission West-Maryland had incurred them itself.
ARTICLE II
APPROVAL OF THE MERGER
2.1 APPROVAL BY PARENT. The Merger shall be approved by the Board of
Directors of Mission West-California in accordance with the provisions of
Section 1110(a) of the CGCL. The Merger shall be approved by the shareholders of
Mission West-California as provided in Section 1110(c) of the CGCL.
2.2 APPROVAL BY SUBSIDIARY. The Merger shall be approved by the Board of
Directors of Mission West-Maryland as provided in Sections 3-105 and 3-106 of
the MGCL.
ARTICLE III
ARTICLES OF INCORPORATION, BYLAWS AND DIRECTORS AND
OFFICERS OF THE SURVIVING CORPORATION
3.1 ARTICLES OF INCORPORATION OF SURVIVING CORPORATION. The Articles of
Amendment and Restatement (the "Charter") of Mission West-Maryland, attached
hereto as Exhibit A, in effect immediately prior to the Effective Time of the
Merger, shall be the Charter of the Surviving Corporation unless and until the
Charter is amended as provided by applicable law or as provided in such Charter.
3.2 BYLAWS OF SURVIVING CORPORATION. The Bylaws of Mission West-Maryland,
attached hereto as Exhibit B, in effect immediately prior to the Effective Time
of the Merger, shall be the Bylaws of the Surviving Corporation unless and until
amended or repealed as provided by applicable law, the Charter or Bylaws of the
Surviving Corporation.
3.3 OFFICERS AND DIRECTORS OF SURVIVING CORPORATION. The officers and
directors of Mission West-California in office immediately prior to the
Effective Time of the Merger shall be the officers and directors of the
Surviving Corporation unless and until replaced as provided by applicable law,
the Charter or the Bylaws of the Surviving Corporation.
ARTICLE IV
EFFECT ON OUTSTANDING STOCK; CAPITALIZATION
4.1 CAPITALIZATION. As of the date hereof, the authorized capital stock
of Mission West-California consists of 200,000,000 shares of Common Stock, no
par value, of which ____________ are currently issued and outstanding, and
20,000,000 shares of Preferred Stock, no par value, none of which has been
designated as any series and none of which are issued and outstanding. As of
the date hereof, the authorized stock of Mission West-Maryland consists of
200,000,000 shares of Common Stock, $0.001 par value per share, of which 100
shares are currently issued and outstanding and 20,000,000 shares of
Preferred Stock, $0.001 par value per share, none of which has been
designated as any series and none of which are issued and outstanding.
Mission West-California owns all of the issued and outstanding shares of
Common Stock of Mission West-Maryland.
4.2 EFFECT ON PARENT STOCK. At the Effective Time of the Merger, by
virtue of the Merger and without any action on the part of the Constituent
Corporations, each share of the issued and outstanding Common Stock of
Mission West-California shall be exchanged for one share of the Common Stock
of Mission West-Maryland.
4.3 EFFECT ON PARENT STOCK OPTIONS. At the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of the Constituent
Corporations, the 5,500,000 shares of Common Stock reserved for issuance under
the Mission West-California 1997 Stock Option Plan shall become shares of
Common Stock of Mission West-Maryland
reserved for issuance under such Plan, and options to purchase _______ shares of
Common Stock of Mission West-California which have been granted and are
outstanding under such Plan shall be exchangeable for options to purchase the
same number of shares of Mission West-Maryland Common Stock at the same exercise
price per share.
4.4 EFFECT ON STOCK OF SUBSIDIARY. At the Effective Time of the Merger,
by virtue of the Merger and without any action on the part of the Constituent
Corporations, all of the shares of Common Stock of Mission West-Maryland
issued and outstanding immediately before this Effective Time of the Merger
shall be canceled. No securities, cash, or other property shall be issued to
Mission West-California as the holder of all of the outstanding shares of
Mission West-Maryland Common Stock.
ARTICLE V
GENERAL PROVISIONS
5.1 GOVERNING LAW. This Agreement shall be governed by and effected in
accordance with the laws of the State of California.
5.2 ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
of the parties with respect to the Merger and supersedes all prior or
contemporaneous agreements.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
MISSION WEST PROPERTIES,
a California corporation
By:
--------------------------------
Carl E. Berg, President
and Chief Executive Officer
By:
--------------------------------
Bradley A. Perkins, Secretary
MISSION WEST PROPERTIES, INC.
a Maryland corporation
By: (SEAL)
--------------------------
Carl E. Berg, President
and Chief Executive Officer
Attest:
----------------------------
Bradley A. Perkins, Secretary