EXHIBIT 5.3
April 17, 2006
Mission West Properties, Inc.
10050 Bandley Drive
Cupertino, CA 95014
REGISTRATION STATEMENT ON FORM S-3
Ladies and Gentlemen:
We have acted as counsel for Mission West Properties, Inc., a Maryland
corporation (the "Company"), in connection with the preparation of the Company's
Registration Statement on Form S-3 proposed to be filed with the Securities and
Exchange Commission on or about April 17, 2006 (the "Registration Statement").
The Registration Statement covers the registration for resale of up to
86,088,095 shares of common stock, $0.001 par value per share, of the Company
(the "Shares"), which might be issued in exchange for units of limited
partnership interests ("O.P. Units") of Mission West Properties L.P., a Delaware
limited partnership, Mission West Properties L.P. I, a Delaware limited
partnership, Mission West Properties L.P. II, a Delaware limited partnership,
and Mission West Properties L.P. III, a Delaware limited partnership
(collectively, the "Operating Partnerships"), by the holders of the O.P. Units.
The O.P. Units may be tendered in redemption or exchange for the Shares upon the
conditions set forth in the agreement of limited partnership of each of the
Operating Partnerships and as set forth in the Exchange Rights Agreement dated
as of December 29, 1998 among the Company, the Operating Partnerships and the
holders of the O.P. Units (the "Exchange Rights Agreement").
We have reviewed the corporate proceedings of the Company with respect to
the authorization of the Registration Statement and the Exchange Rights
Agreement and have reviewed the limited partnership agreement of each of the
Operating Partnerships. We have also examined and relied upon such agreements,
instruments, corporate records, certificates, and other documents as we have
deemed necessary or appropriate as a basis for the opinion hereinafter
expressed. In our examination, we have assumed the genuineness of all
signatures, the conformity to the originals of all documents reviewed by us as
copies, the authenticity and completeness of all original documents reviewed by
us in original or copy form, and the legal competence of each individual
executing any document.
We further assume, without investigation, that all Shares will be issued in
accordance with the terms of the Exchange Rights Agreement and the limited
partnership agreements and that the purchase price of each of the Shares will be
at least equal to the par value of such Shares, except as otherwise authorized
in the future in accordance with the Maryland General Corporation Law.
This opinion is limited solely to the Maryland General Corporation Law as
applied by courts located in Maryland, the applicable provisions of the Maryland
Constitution and the reported judicial decisions interpreting those laws, as
well as to applicable provisions of the Delaware Revised Uniform Limited
Partnership Act and California law in effect as of the date of this opinion.
Based upon and subject to the foregoing, we are of the opinion that the
Shares, when issued and delivered upon the tender of O.P. Units for exchange or
redemption in accordance with the Exchange Rights Agreement and the limited
partnership agreements, will be validly issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as Exhibit 5.3 to the
Registration Statement, and as an exhibit to any further registration statement
to be filed pursuant to SEC Rule 462(b) with respect to the shares, and to the
reference to this firm under the heading "Legal Matters" in the prospectus
included in the Registration Statement. In giving this consent, however, we do
not thereby admit that we are an "expert" within the meaning of the Securities
Act of 1933, as amended.
Very truly yours,
/s/ BINGHAM MCCUTCHEN LLP
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BINGHAM MCCUTCHEN LLP