EXHIBIT 3
VOTING RIGHTS AGREEMENT
This Voting Rights Agreement (the "Agreement") is made and entered into
as of this 12th day of November, 1997 by and among each of the persons listed
on Appendix I to the Stock Purchase Agreement, dated of even date herewith
(the "Purchase Agreement") who is acquiring at least 22,500 shares of the
common stock of Mission West Properties (the "Company") pursuant to the
Purchase Agreement (the "Investors"), and Xxxx & Xxxx Enterprises, Inc.
("BBE").
R E C I T A L S
WHEREAS, the Company and the Investors entered into the Purchase
Agreement pursuant to which the Company agreed to sell and issue 1,250,000
shares of the Company's Common Stock to the Investors;
WHEREAS, concurrently herewith, each Investor has executed the Purchase
Agreement and subscribed to the number of shares of the Company's Common
Stock indicated on a subscription form delivered to the Company by each
Investor (the "Purchase"); and
WHEREAS, in connection with the Purchase, the Investors and Xxxx & Xxxx
Enterprises, Inc., a major shareholder of the Company, desire to provide for
the future voting of shares of the Company's capital stock held by them;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE 1.
VOTING
1.1 Each Investor and BBE agree to hold all shares of Common Stock of
the Company registered in their respective names or beneficially now or
hereafter owned by them (hereinafter collectively referred to as the
"Shares") subject to, and to vote the Shares in accordance with, the
provisions of this Agreement.
1.2 Following the closing of the Purchase, each Investor agrees to vote
such Investor's Shares as directed by Xxxx Xxxx, on behalf of BBE, on all
matters submitted to a vote of the shareholders of the Company.
1.3 This voting agreement provided in Section 1.2 above is coupled with
an interest and may not be revoked (i) without the consent of the Investors
holding at least a majority of the outstanding Shares then held by all
Investors and (ii) without the consent of BBE; provided, however, that BBE
then holds shares of Common Stock of the Company.
1.4 Concurrently with the execution of this Agreement, each of the
Investors will authorize and direct the Company, through BBE, to imprint or
otherwise place on certificates representing the Shares the following, or a
substantially similar, restrictive legend:
"The shares represented by this certificate are subject to the terms and
conditions of a Voting Rights Agreement, dated as of November 12, 1997,
all the terms of which are incorporated herein by reference. The Voting
Rights Agreement shall terminate or become inapplicable as to shares
represented by this certificate under the circumstances described therein.
A copy of such Agreement may be obtained without charge upon written
request to the Company at its principal place of business."
1.5 The provisions of this Agreement shall be binding upon the
successors in interest to any of the Shares. Each Investor understands and
agrees that the Company shall not permit the transfer of any of
the Shares on its books or issue a new certificate representing any of
the Shares unless and until the person to whom such security is to be
transferred shall have executed a written agreement, substantially in the
form of this Agreement, pursuant to which such person becomes a party to this
Agreement and agrees to be bound by all the provisions hereof as if such
person were an Investor.
1.6 Except as provided by this Agreement, each Investor and BBE shall
exercise the full rights of a shareholder with respect to the Shares held by
each.
ARTICLE 2.
EFFECT; TERMINATION
This Agreement shall continue in full force and effect with respect to
all Shares from the date of the Purchase until the earliest of the following
dates: (i) upon any sale of the Shares pursuant to a registration statement
declared effective under the Securities Act of 1933, as amended, but in such
event this Agreement shall terminate only as to the Shares so sold; (ii) any
sale of the shares pursuant to Rule 144 promulgated under the Securities Act,
but in such event this Agreement shall terminate only as to the Shares so
sold; or (iii) two years after the effective date of this Agreement, at which
time this Agreement will terminate in its entirety.
ARTICLE 3.
MISCELLANEOUS
3.1 The parties hereto hereby declare that it is impossible to measure
in money the damages which will accrue to a party hereto or to their heirs,
personal representatives, or assigns by reason of a failure to perform any of
the obligations under this Agreement and agree that the terms of this
Agreement shall be specifically enforceable. If any party hereto or such
party's heirs, personal representatives, or assigns institutes any action or
proceeding to specifically enforce the provisions hereof, any person against
whom such action or proceeding is brought hereby waives the claim or defense
therein that such party or such personal representative has an adequate
remedy at law, and such person shall not offer in any such action or
proceeding the claim or defense that such remedy at law exists.
3.2 This Agreement, and the rights of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of
California without regard to its principles governing conflicts of laws.
3.3 The rights and covenants provided herein are the sole and entire
agreement between the Investors and BBE with respect to the subject matter
hereof. This Agreement may be amended at any time and from time to time, and
particular provisions of this Agreement may be waived as to all Investors and
BBE, only by an instrument in writing signed by a majority-in-interest of the
Investors and BBE. Notwithstanding the above, this Agreement may also be
amended by BBE with no further action on the part of the Investors solely to
include as Investors hereunder holders of Common Stock of the Company issued
by the Company after the closing of the Purchase.
3.4 If any provision of this Agreement is held to be invalid or
unenforceable, the validity and enforceability of the remaining provisions of
this Agreement shall not be affected thereby.
3.5 This Agreement shall inure to the benefit of and be binding upon the
parties hereto and their respective heirs, successors, assigns,
administrators, executors and other legal representatives.
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SIGNATURE PAGE TO VOTING RIGHTS AGREEMENT
3.6 In the event that subsequent to the date of this Agreement any
shares or other securities (other than any shares or securities of another
corporation issued to the Company's shareholders pursuant to a plan of
merger) are issued on, or in exchange for, any of the Shares held by the
Investors by reason of any stock dividend, stock split, consolidation of
shares, reclassification or consolidation involving the Company, such shares
or securities shall be deemed to be Shares for purposes of this Agreement.
3.7 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.
3.8 No delay or omission to exercise any right, power or remedy accruing
to any party, upon any breach or default of any other party under this
Agreement, shall impair any such right, power or remedy of such party nor
shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereunder
occurring; nor shall any waiver of any single breach or default be deemed a
waiver of any other breach or default theretofore or thereafter occurring.
Except as provided in Section 3.3 hereof, any waiver, permit, consent or
approval of any kind or character on the part of any party of any breach or
default under this Agreement, or any waiver on the part of any party of any
provisions or conditions of this Agreement, must be in writing and shall be
effective only to the extent specifically set forth in such writing. All
remedies, either under this Agreement, or by law or otherwise afforded to any
holder, shall be cumulative and not alternative.
The foregoing Voting Rights Agreement is hereby executed as of the date
first above written.
XXXX & XXXX ENTERPRISES, INC.
By: /s/ Xxxx X. Xxxx
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President and Chief Executive Officer
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Please print name and title
Address: 00000 Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
INVESTORS:
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By:
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Please print name and title
No. of Shares
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(Complete and sign only if you are
acquiring at least 22,500 shares of
Mission West Properties Common Stock)
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