VOTING RIGHTS AGREEMENT
This Voting Rights Agreement (the "Agreement") is made and entered into as
of this 4th day of August, 1997 by and among each of the persons listed on
Exhibit A hereto (the "Investors") and Xxxx & Xxxx Enterprises, Inc. ("BBE").
R E C I T A L S
WHEREAS, Mission West Properties, a California corporation (the "Company"),
BBE and certain shareholders of the Company entered into a Stock Purchase
Agreement, dated as of May 27, 1997 and as amended as of July 2, 1997 (the
"Purchase Agreement") pursuant to which the Company agreed to sell and issue
6,000,000 shares of the Company's Common Stock to a group of private investors
led by BBE;
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 by each Investor (the "Purchase");
and
WHEREAS, in connection with the Purchase, the Investors and BBE 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 "Legend'):
"The shares represented by this certificate are subject to the terms and
conditions of a Voting Rights Agreement, dated as of __________, 1997, all
the terms of which are incorporated herein by reference. 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. Investor understands 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.
1.7 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 only as to
the Shares so sold; (ii) any sale of the shares pursuant to Rule 144 promulgated
under the Securities Act, but 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 his 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 any 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.
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 the counterparts
may be delivered
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by facsimile.
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:
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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
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