MISSION WEST PROPERTIES, INC.
10050 Bandley Drive, Cupertino, CA 95014
Ph. 408-725-0700 Fax 408-725-1626
November 1, 2005
Mr. Josh Forgione
Staff Accountant
United States Securities and Exchange Commission
100 F Street, N.E.
Washington, D.C. 20549
Re: Mission West Properties, Inc.
Response to Comments from the SEC on Form 10-K for Fiscal Year Ended
December 31, 2004; and
Forms 10-Q for the Fiscal Quarters ended March 31, 2005 and June 30, 2005
File No. 0-25235
Dear Mr. Forgione:
This letter sets forth responses of Mission West Properties, Inc. (the
"Company") to your comments relating to the Company's Annual Report on Form 10-K
and Forms 10-Q contained in your letter dated October 21, 2005. The Staff
comment is repeated in capitalized letters type below, and the Company's
response appears immediately beneath each comment.
Form 10-K for the year ended December 31, 2004
ITEM 15, EXHIBITS, FINANCIAL STATEMENT SCHEDULES AND REPORTS ON FORM 8-K, PAGE
88
1. SUPPLEMENTALLY ADVISE US AS TO WHY RAYMOND V. MARINO IS A SIGNATORY OF
THE CERTIFICATION FILED UNDER ITEM 601(b)(31) OF REGULATION S-K BUT
NOT THE CERTIFICATION FILED UNDER ITEM 601(b)(32) OF REGULATION S-K.
Raymond V. Marino is a director, president and chief operating officer
of the Company. Carl E. Berg is chairman and chief executive officer
of the Company. Wayne Pham is vice president of finance and controller
(principal accounting officer) of the Company. The certification filed
under Item 601(b)(31) is made pursuant to Section 302 of the Sarbanes
Oxley Act ("SOX"), which requires that certifications be submitted by
the "principal executive officer or officers and the principal
financial officer or officers, or persons performing similar
functions." As disclosed under Item 9A of the Company's 2003 Form
10-K, the Company's auditors identified a material weakness in
internal controls attributable to the Company's low head count and
segregation of duties without compensating controls. One important
measure recommended by the auditors to remediate this internal
weakness
was to involve the Company's president and chief operating officer,
Mr. Marino, in the review of the Company's internal controls and
procedures. The Company accepted that recommendation and, as a result,
Mr. Marino became one of the officers required to sign and submit a
certification under SOX Section 302.
The certification filed under Item 601(b)(32) is made pursuant to SOX
Section 906, which requires that certifications be submitted by the
"chief executive officer and chief financial officer (or equivalent
thereof) of the issuer." Mr. Marino does not hold either position and
hence has not submitted this additional certification.
2. THE CERTIFICATIONS MUST COMPLY WITH THE SIGNATURE REQUIREMENTS OF RULE
302 OF REGULATION S-T. PLEASE AMEND YOUR FORM 10-K AND FORMS 10-Q FOR
THE QUARTERS ENDED MARCH 31, 2005 AND JUNE 30, 2005, IN THEIR
ENTIRETY, TO INCLUDE NEW CERTIFICATIONS THAT CONTAINED CONFORMED
SIGNATURES IN ACCORDANCE WITH RULE 302 OF REGULATION S-T.
We will file a Form 10-K/A for the fiscal year ended December 31,
2004, and Forms 10-Q/A for the quarters ended March 31, 2005 and June
30, 2005, in their entirety, to include new certifications that
contain conformed signatures in accordance with Rule 302 of Regulation
S-T.
3. PLEASE CONFIRM TO US THAT YOU OBTAINED MANUALLY SIGNED CERTIFICATIONS
FROM EACH SIGNATORY TO YOUR CERTIFICATIONS FILED AS EXHIBITS 31.1,
31.2, 31.3 AND 32, AT THE TIME OF THE ORIGINAL FILINGS IN ACCORDANCE
WITH RULE 302 OF REGULATION S-T.
We have obtained and maintain in the Company's files manually signed
certifications from each signatory to our certifications filed as
exhibits 31.1, 31.2, 31.3 and 32, at the time of the original filings
in accordance with Rule 302 of Regulation S-T.
4. THE LANGUAGE IN THE CERTIFICATIONS SHOULD NOT BE CHANGED FROM THAT SET
FORTH IN ITEM 601(b)(31) OF REGULATION S-K. PLEASE REVISE YOUR
CERTIFICATIONS FILED TO REFLECT THE LANGUAGE EXACTLY AS SET FORTH IN
ITEM 601(b)(31) OF REGULATION S-K. PLEASE MAKE CONFORMING CHANGES TO
YOUR FORMS 10-Q FOR THE QUARTERS ENDED MARCH 31, 2005 AND JUNE 30,
2005. SPECIFICALLY THE FOLLOWING DISCREPANCIES WERE NOTED IN YOUR
CERTIFICATIONS:
(A) REFERENCE SHOULD BE MADE TO RULE "15d-15(e)" OF THE EXCHANGE ACT
RATHER THAN RULE "15d-14(e);"
(B) REFERENCE TO "RULE 15d-15(f)" OF THE EXCHANGE ACT WAS OMITTED
FROM THE CERTIFICATIONS FILED;
(C) ALL REFERENCES TO "COMPANY" SHOULD BE REPLACED WITH "REGISTRANT;"
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(D) ALL REFERENCES TO "ANNUAL REPORT" SHOULD BE REPLACED WITH
"REPORT;"
(E) IN PARAGRAPH 4(d), THE PHRASE "FOURTH FISCAL QUARTER" SHOULD BE
REPLACED WITH "MOST RECENT FISCAL QUARTER (THE REGISTRANT'S
FOURTH FISCAL QUARTER IN THE CASE OF AN ANNUAL REPORT)."
We will file a Form 10-K/A for the fiscal year ended December 31,
2004, and Form 10-Q/A for the quarters ended March 31, 2005 and June
30, 2005 and make conforming changes consistent with this comment.
In connection with the foregoing responses to your comments, the Registrant
acknowledges:
- Company is responsible for the adequacy and accuracy of the disclosure
in the filing;
- SEC staff comments or changes to disclosure in response to SEC staff
comments do not foreclose the SEC from taking any action with respect
to the filing; and
- Company may not assert SEC staff comments as a defense in any
proceeding initiated by the SEC or any person under the federal
securities laws of the United States.
Sincerely,
Mission West Properties, Inc.
/s/ Carl E. Berg
Carl E. Berg
Chairman and CEO
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