As filed with the Securities and Exchange Commission On March 30, 2006
Registration Statement No. 333-52835-99
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
POST-EFFECTIVE AMENDMENT NO. 2
TO
FORM S-4 REGISTRATION STATEMENT
ON
FORM S-3 REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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MISSION WEST PROPERTIES, INC.
(Exact name of Registrant as specified in its charter)
Maryland 952635431
(State or other jurisdiction of (I.R.S. Employer Identification Number)
incorporation or organization)
10050 Bandley Drive
Cupertino, California 95014-2102
(408) 725-0700
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
Carl E. Berg
Chairman and Chief Executive Officer
Mission West Properties, Inc.
10050 Bandley Drive
Cupertino, California 95014-2102
(408) 725-0700
(Address, including zip code, and telephone number, including area code,
agent for service of process)
---------------
Copies of all communications to:
Alan B. Kalin
Bingham McCutchen LLP
1900 University Avenue
East Palo Alto, California 94303-2223
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, please check the following box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering: [ ]
If this Form is a registration statement pursuant to General Instruction
I.D. or a post-effective amendment thereto that shall become effective upon
filing with the Commission pursuant to Rule 462(e) under the Securities Act,
check the following box. [ ]
If this Form is a post-effective amendment to a registration statement
filed pursuant to General Instruction I.D. filed to register additional
securities or additional classes of securities pursuant to Rule 413(b) under the
Securities Act, check the following box. [ ]
*THIS REGISTRATION STATEMENT IS FILED AS POST-EFFECTIVE AMENDMENT NO. 2 TO
THE REGISTRANT'S FORM S-4 REGISTRATION STATEMENT NO. 333-52835-99 DECLARED
EFFECTIVE ON NOVEMBER 23, 1998. ALL FILING FEES WERE PAID WITH THE EARLIER
REGISTRATION STATEMENT.
--------------------------------------------------------------------------------
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933, OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THE
SECURITIES DESCRIBED IN THIS PROSPECTUS MAY NOT BE SOLD UNTIL THE REGISTRATION
STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS
PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN
OFFER TO BUY THE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT
PERMITTED.
SUBJECT TO COMPLETION,
Dated: March 30, 2006
PROSPECTUS
86,088,095 Shares of Common Stock
$.001 par value
Mission West Properties, Inc.
10050 Bandley Drive
Cupertino, California 95014-2102
(408) 725-0700
This prospectus relates to the public offering of up to 86,088,095 shares
of common stock which we may issue to the holders of units of limited
partnership interests, or O.P. units, in our four controlled operating
partnerships, in exchange or redemption for an equal number of O.P. units under
the terms of existing agreements between us and these holders who we refer to as
the "selling stockholders." We will not receive any proceeds from any possible
sale of the common shares by the selling stockholders. For information regarding
the selling stockholders, see "Selling Stockholders" beginning on page 2 of this
prospectus.
We are registering the shares of common stock being offered by this
prospectus in order to permit the selling stockholders to sell them without
restriction, in the open market or otherwise. However, the registration of such
shares does not necessarily mean that any of the O.P. units will be submitted
for exchange or redemption or that any of the shares of common stock to be
issued in exchange or redemption for the O.P. units will be offered or sold by
the selling stockholders.
The selling stockholders may offer their shares of common stock through
public or private transactions, on or off the United States exchanges, at
prevailing market prices, or at privately negotiated prices. This offering is
not being underwritten.
The common stock is listed on the American Stock Exchange and the Pacific
Exchange and trades on these stock exchanges with the symbol "MSW". On March __,
2006 the closing price of one share of common stock, as quoted on the American
Stock Exchange was $____.
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THE SHARES OF COMMON STOCK INVOLVE A HIGH DEGREE OF RISK. SEE "RISK FACTORS"
BEGINNING ON PAGE 2.
----------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED THE SHARES OF THESE SECURITIES OR PASSED
UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is March ____, 2006.
TABLE OF CONTENTS
Page
Our Company...................................................................................... 1
Risk Factors..................................................................................... 1
Use of Proceeds.................................................................................. 2
The Selling Stockholders......................................................................... 2
Plan of Distribution............................................................................. 4
Where You Can Find More Information.............................................................. 6
Incorporation by Reference....................................................................... 6
Legal Matters.................................................................................... 6
Recent Developments.............................................................................. 7
Experts.......................................................................................... 7
In this prospectus, "Mission West," "we," "us," and "our" refer to Mission
West Properties, Inc.
You should rely only on information contained or incorporated by reference
in this prospectus. We have not authorized any person to provide you with
information that differs from what is contained or incorporated by reference in
this prospectus. If any person does provide you with information that differs
from what is contained or incorporated by reference in this prospectus, you
should not rely on it. This prospectus is not an offer to sell or the
solicitation of an offer to buy any securities other than the securities to
which it relates, or an offer of solicitation in any jurisdiction where offers
or sales are not permitted. The information contained in this prospectus is
accurate only as of the date of this prospectus, even though this prospectus may
be delivered or shares may be sold under this prospectus on a later date.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
Some of the statements in this prospectus contain forward-looking
statements within the meaning of the federal securities laws. We intend such
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995, and are including this statement for purposes of complying with
these safe harbor provisions.
Forward-looking statements, which are based on certain assumptions and
describe future plans, strategies and expectations of us, are generally
identifiable by use of the words "believe," "expect," "intend," "anticipate,"
"estimate," "project" or similar expressions.
Our ability to predict results or the actual effect of future plans or
strategies is inherently uncertain. Factors which could have a material adverse
effect on our operations and future prospects include, but are not limited to,
changes in economic conditions generally and the real estate market
specifically, legislative or regulatory provisions affecting us (including
changes to laws governing the taxation of Real Estate Investment Trusts
("REITs")), availability of capital, interest rates, competition, supply of and
demand for office and industrial properties in our current and proposed market
areas, tenant defaults and bankruptcies, and general accounting principles,
policies and guidelines applicable to REITs. These risks and uncertainties,
together with the other risks incorporated by reference under "Risk Factors"
below or described from time to time in our reports and documents filed with the
Securities and Exchange Commission (the "SEC" or the "Commission"), should be
considered in evaluating forward-looking statements, and undue reliance should
not be placed on such statements.
Moreover, neither we nor any other person assumes responsibility for the
accuracy and completeness of these statements. We undertake no obligation to
update or revise any of the forward-looking statements, whether as a result of
new information, future events or otherwise, except as required by law. In light
of these risks, uncertainties and assumptions, the forward-looking events
discussed or incorporated by reference in this prospectus may not occur.
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OUR COMPANY
Mission West acquires, markets, leases, and manages research and
development ("R&D") properties primarily located in the Silicon Valley portion
of the San Francisco Bay Area. As of December 31, 2005, we owned and managed 107
properties totaling approximately 7.8 million rentable square feet through four
limited partnerships, or operating partnerships, for which we are the sole
general partner. R&D property is designed for research and development and
office uses and, in some cases, includes space for light manufacturing
operations with loading docks. We believe that we have one of the largest
portfolios of R&D properties in the Silicon Valley. For federal income tax
purposes we have operated as a self-managed, self-administered and fully
integrated REIT since fiscal 1999.
In May 1998, Mission West, Carl E. Berg, his brother Clyde J. Berg, certain
members of their respective immediate families, and certain entities in which
Carl E. Berg and/or Clyde J. Berg held controlling or other ownership interests
(collectively referred to as the "Berg Group") and certain other persons,
including John T. Kontrabecki, entered into an acquisition agreement to effect
an UPREIT transaction, which provided among other things, for our acquisition of
interests as the sole general partner in each of the four operating partnerships
named Mission West Properties, L.P., Mission West Properties, L.P. I, Mission
West Properties, L.P. II, and Mission West Properties, L.P. III. In July 1998,
the parties amended the acquisition agreement and agreed to consummate our
acquisition of the general partner interests in each of the operating
partnerships effective for financial and income tax accounting and reporting
purposes as of July 1, 1998. At that time, all existing limited partnership
interests in the operating partnerships were reclassified into 59,479,633 O.P.
units which could be exchanged for shares of our common stock pursuant to the
terms of an exchange rights agreement. Under the terms of the acquisition
agreement, the operating partnerships and we also agreed to enter into a Pending
Projects Acquisition Agreement, which permitted the acquisition by the operating
partnerships of approximately 1.0 million additional rentable square feet upon
the completion and leasing of a number of the pending development projects owned
by certain members of the Berg Group. The acquisition agreement also gave us an
option to acquire, through the operating partnerships, future R&D Property
developments on Silicon Valley land owned by members of the Berg Group under the
terms of the Berg Land Holdings Option Agreement and provided that the Berg
Group members could elect to receive cash or O.P. units upon our exercise of the
option. Since July 1, 1998, we have acquired approximately 3.1 million
additional rentable square feet of R&D properties from the Berg Group under the
Pending Projects Acquisition Agreement and the Berg Land Holdings Option
Agreement for a total cost of approximately $633.0 million. We have issued a
total of 27,962,025 O.P. units and assumed debt totaling approximately $308.0
million to acquire these properties.
Our principal executive offices are located at 10050 Bandley Drive, Cupertino,
California 95014, and our telephone number is (408) 725-0700.
RISK FACTORS
An investment in our common stock is risky. Prior to making a decision
about investing in our common stock, you should carefully consider the specific
risks discussed under Item 1A. "Risk Factors" in our Annual Report on Form 10-K
for the year ended December 31, 2005, filed on March 16, 2006, and in our other
filings with the SEC, which are incorporated by reference in this prospectus,
together with all of the other information contained in this prospectus, any
applicable prospectus supplement, or otherwise incorporated by reference in this
prospectus. The risks and uncertainties described in our SEC filings are not the
only ones facing us. Additional risks and uncertainties not presently known to
us, or that we currently see as immaterial, may also harm our business. If any
of the risks or uncertainties described in the applicable prospectus supplement
or our SEC filings or any such additional risks and uncertainties actually
occur, our business, results of operations, cash flows and financial condition
could be materially and adversely affected. In that case, the trading price of
our common stock could decline, and you might lose all or part of your
investment.
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USE OF PROCEEDS
All net proceeds from the sale of the shares of common stock will go to the
stockholders who offer and sell their shares. Accordingly, we will not receive
any of the proceeds from sales of their shares by the selling stockholders.
THE SELLING STOCKHOLDERS
This prospectus relates to the resale of shares of common stock that we
might issue to the selling stockholders in exchange or redemption for O.P. units
they held at the time of the UPREIT transaction or acquired subsequently under
the Pending Projects Acquisition Agreement or the Berg Land Holdings Option
Agreement. Most of the selling stockholders are members of the Berg Group. We
might issue such shares under two alternatives. First, the exchange rights
agreement permits every limited partner in the operating partnerships to tender
O.P. units to us, and, at our election, to receive in exchange common stock on a
one-for-one basis at then-current market value, an equivalent amount of cash, or
a combination of cash and common stock, subject to the 9% overall ownership
limit imposed on non-Berg Group stockholders under our charter document, or the
overall 20% Berg Group ownership limit contained in the acquisition agreement,
as the case may be. This exchange ratio is subject to adjustment for stock
splits, stock dividends, recapitalizations of our common stock and similar types
of corporate actions. In addition, once in each 12-month period beginning each
December 29, the limited partners, other than Carl E. Berg and Clyde J. Berg,
may exercise a put right to sell their O.P. units to the operating partnerships
at a price equal to the average market price of the common stock for the
10-trading day period immediately preceding the date of tender. Upon any
exercise of the put rights, we will have the opportunity for a period of 15 days
to elect to fund the purchase of the O.P. units and purchase additional general
partner interests in the operating partnerships for cash, unless the purchase
price exceeds $1.0 million in the aggregate for all tendering limited partners,
in which case, the operating partnerships or we will be entitled, but not
required, to reduce proportionally the number of O.P. units to be acquired from
each tendering limited partner so that the total purchase price is not more than
$1 million.
Under the exchange rights agreement, the holders of not less than 5% of the
O.P. units are able to request resale registrations of shares of common stock
acquired on exchange of O.P. units on a Form S-3, or any equivalent form of
registration statement. We are obligated to effect no more than two such
registrations in any 12-month period. We are obligated to assist the O.P. Unit
holders in obtaining a firm commitment underwriting agreement for such resale
from a qualified investment-banking firm. If registration on Form S-3, or an
equivalent form, is not available for any reason, we are obligated to effect a
registration of the shares to be acquired on exercise of the exchange rights on
a Form S-11 registration statement, or an equivalent form, in an underwritten
public offering, upon demand by the holders of no fewer than 500,000 O.P. units.
All holders of O.P. units are entitled to participate in such registration. We
have agreed to bear all costs of such registrations other than selling expenses,
including commissions and separate counsels' fees of the O.P. unit holders. We
are not required to effect any registration for resale on Form S-3, or
equivalent form of shares of common stock issuable to the holders of O.P. units
if the request is for less than 250,000 shares.
If we determine, in our sole discretion, that it would be detrimental to us
or our stockholders to offer or sell, or continue to offer or sell, any shares
of common stock under this prospectus, we may deliver to the selling
stockholders a certificate to this effect signed by the President of Mission
West Properties stating that in the good faith judgment of our board of
directors, and specifying a period of between 10 and 120 days in which the
selling stockholders must suspend sales of common stock under this prospectus
(though not necessarily by other means). We may exercise this right just once
during any 12-month period.
A total of 93,398,705 shares of our common stock issuable in exchange for
the O.P. units outstanding at July 1, 1998 and the O.P. units to be issued
pursuant to the pending projects acquisition agreement were registered under the
Securities Act pursuant to a registration statement on Form S-4 filed with the
SEC on May 15, 1998 and declared effective on November 23, 1998 (the
"Registration Statement"). The following table sets forth certain information
regarding the selling stockholders and the shares of common stock beneficially
owned by each of them. Except as otherwise described below, none of the selling
stockholders has held any office with, been employed by, or otherwise had a
material relationship with us or our affiliates within the past three years, and
the address of each selling stockholder is c/o Mission West Properties, Inc.,
10050 Bandley Drive, Cupertino, California 95014.
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Number of Shares
Number of and Percentage of
Shares of Common Shares of Common Stock
Name of Selling Stockholder Stock Beneficially Common Stock Beneficially
Owned before Being Offered Owned after
Offering (1) (2) Offering (1)
---------------------------------------------------------- --------------------- ----------------- -------------------
Carl E. Berg(3) 33,646,499 33,646,499
---------------------------------------------------------- --------------------- ----------------- -------------------
Clyde J. Berg(4) 19,436,162 19,436,162 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Clyde J. Berg, Trustee 13,252,925 13,252,925 0
1981 Kara Ann Berg Trust
---------------------------------------------------------- --------------------- ----------------- -------------------
Berg & Berg Enterprises, LLC(5) 196,428 196,428 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Berg & Berg Enterprises, Inc.(6) 10,789,383 10,789,383 0
---------------------------------------------------------- --------------------- ----------------- -------------------
West Coast Venture Capital, Inc.(7) 169,131 169,131 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Kara Ann Berg(8) 966,614 965,614 1,000
---------------------------------------------------------- --------------------- ----------------- -------------------
Sonya L. O'Rosky 1,890,168 1,890,168 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Sherri L. Zorn 1,740,168 1,740,168 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Thelmer G. Aalgaard 1,891,785 1,854,225 37,560
---------------------------------------------------------- --------------------- ----------------- -------------------
Brian Aalgaard 83,291 72,179 11,112
---------------------------------------------------------- --------------------- ----------------- -------------------
Myron Crawford 40,000 40,000 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Steve Aberle 17,900 17,900 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Leighton Fargher 30,000 30,000 0
---------------------------------------------------------- --------------------- ----------------- -------------------
Michael L. Knapp (9) 243,502 200,114 43,388
---------------------------------------------------------- --------------------- ----------------- -------------------
Knapp Investments, L.P. (9) 40,438 31,438 9,000
---------------------------------------------------------- --------------------- ----------------- -------------------
JTK Trust 1,755,761 1,755,761 0
2755 Campus Drive, Suite 100
San Mateo, CA 94403
---------------------------------------------------------- --------------------- ----------------- -------------------
(1) Beneficial ownership is determined in accordance with the rules of the
Commission, which generally attribute beneficial ownership of securities to
persons who possess sole or shared voting power and/or investment power
with respect to those securities and include securities which such person
has the right to acquire within 60 days of February 28, 2006. Unless
otherwise indicated, the persons or entities identified in this table have
sole voting and investment power with respect to all shares shown as
beneficially owned by them. Common stock percentage ownership interest
calculations are based on 18,448,791 shares outstanding as of February 28,
2006 and exclude all shares of common stock issuable upon the exercise of
outstanding options other than the shares so issuable within 60 days under
options held by the named person. Based on this determination of beneficial
ownership, all of the persons or entities in the table hold less than one
percent of the common stock before and after the offering.
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(2) Assumes O.P. units are exchanged for shares of common stock without regard
to (i) whether the selling stockholder has the right to exchange such O.P.
units for shares of common stock within 60 days of February 28, 2006, and
(ii) certain ownership limit provisions set forth in the Company's Articles
of Amendment and Restatement and the acquisition agreement.
(3) Carl E. Berg is and has been our Chairman of the Board of Directors and
Chief Executive Officer since 1997. This amount does not include any O.P.
units or shares deemed beneficially owned by Mr. Berg that are held by any
of the Berg Group entities listed in this table. Mr. Berg disclaims
beneficial interest in any shares or O.P. units deemed beneficially owned
by Kara Ann Berg, his daughter, and the 1981 Kara Ann Berg Trust.
(4) Clyde J. Berg is the brother of Carl E. Berg. This amount excludes O.P.
units held by Mr. Berg as trustee of the 1981 Kara Ann Berg Trust and
shares beneficially owned by Sonya L. O'Rosky and Sherri L. Zorn, his
daughters, as to which he disclaims beneficial ownership. This amount does
not include any O.P. units or shares deemed beneficially owned by Mr. Berg
that are held by any of the Berg Group Entities listed in this table.
(5) Berg & Berg Enterprises, LLC is owned 15% by Carl E. Berg and 85% by the
1981 Kara Ann Berg Trust.
(6) Carl E. Berg is an executive officer and director, and Clyde J. Berg is a
director, of Berg & Berg Enterprises, Inc. With members of their immediate
families, Messrs. Berg beneficially own, directly and indirectly, all of
the O.P. units held by Berg & Berg Enterprises, Inc.
(7) Carl E. Berg and Berg & Berg Enterprises LLC own 100% of the outstanding
stock of West Coast Venture Capital, Inc.
(8) This amount does not include any O.P. units indirectly and/or beneficially
owned by Kara Ann Berg through the 1981 Kara Ann Berg Trust or other Berg
Group entities.
(9) Mike Knapp is the Director of Operations of the Company.
PLAN OF DISTRIBUTION
Each selling stockholder and any of his or her pledgees, donees,
transferees, assignees and successors-in-interest may, from time to time, sell
any or all of their shares of common stock on any stock exchange, market or
trading facility on which our common stock is traded or in private transactions.
These sales may be at fixed or negotiated prices. The selling stockholder may
use any one or more of the following methods when selling shares of common
stock:
- ordinary brokerage transactions and transactions in which the broker-dealer
solicits purchasers;
- block trades in which the broker-dealer will attempt to sell the shares as
agent but may position and resell a portion of the block as principal to
facilitate the transaction;
- purchases by a broker-dealer as principal and resale by the broker-dealer
for its account;
- an exchange distribution in accordance with the rules of the applicable
exchange;
- privately negotiated transactions;
- broker-dealers may agree with the selling stockholder to sell a specified
number of such shares at a stipulated price per share;
- through options;
- by pledge to secure debts and other obligations;
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- to cover short sales made pursuant to this prospectus;
- a combination of any such methods of sale; or
- any other method permitted pursuant to applicable law.
Broker-dealers engaged by the selling stockholder may arrange for other
brokers-dealers to participate in sales. Broker-dealers may receive commissions
or discounts from the selling stockholder (or, if any broker-dealer acts as
agent for the purchaser of shares, from the purchaser) in amounts to be
negotiated. The selling stockholder does not expect these commissions and
discounts to exceed what is customary in the types of transactions involved.
The selling stockholder may from time to time pledge or grant a security
interest in some or all of the shares owned by them and, if they default in the
performance of their secured obligations, the pledgees or secured parties may
offer and sell shares of common stock from time to time under this prospectus,
or under an amendment to this prospectus under Rule 424(b)(3) or other
applicable provision of the Securities Act amending the selling security holder
list to include the pledgee, transferee or other successors in interest as
selling stockholder under this prospectus.
The selling stockholder also may transfer the shares of common stock in
other circumstances, in which case the transferees, pledgees or other successors
in interest will be the selling beneficial owners for purposes of this
prospectus. This prospectus may also be used by transferees of the selling
stockholder, including broker-dealers or other transferees who borrow or
purchase the shares to settle or close out short sales of shares of common
stock. The selling stockholder will act independently of us in making decisions
with respect to the timing, manner, and size of each sale or non-sale related
transfer.
The selling stockholder may enter into hedging transactions with
broker-dealers in connection with distributions of the shares or otherwise. In
such transactions, broker-dealers or other financial institutions may engage in
short sales of the shares in the course of hedging the positions they assume
with the selling stockholder. The selling stockholder may also sell shares short
and deliver the shares to close out such short positions. The selling
stockholder may also enter into option or other transactions with
broker-dealers, which require the delivery to the broker-dealer of the shares.
The broker-dealer may then resell or otherwise transfer such shares pursuant to
this prospectus. The selling stockholder may also pledge or loan the shares to a
broker-dealer. The broker-dealer may sell the shares so loaned, or upon a
default, the broker-dealer may sell the pledged shares pursuant to this
prospectus. In addition, any shares that qualify for sale pursuant to Rule 144
may be sold under Rule 144 rather than pursuant to this prospectus.
The selling stockholder and any broker-dealers or agents that are involved
in selling the shares of common stock may be deemed to be "underwriters" within
the meaning of the Securities Act in connection with such sales. In such event,
any commissions received by such broker-dealers or agents and any profit on the
resale of the shares purchased by them may be deemed to be underwriting
commissions or discounts under the Securities Act. Discounts, concessions,
commissions and similar selling expenses, if any, attributable to the sale of
shares will be borne by the selling stockholder.
If the selling stockholder uses this prospectus for any sale of the common
stock, they will be subject to the prospectus delivery requirements of the
Securities Act. The selling stockholder will be responsible to comply with the
applicable provisions of the Securities Act and the Securities Exchange Act of
1934, as amended (the "Exchange Act") and the rules and regulations thereunder
promulgated, including, without limitation, Regulation M, as applicable to the
selling stockholder in connection with resales of its shares under this
registration statement.
We are required to pay all fees and expenses incident to the registration
of the shares of common stock, but we will not receive any proceeds from the
sale of the common stock. We have agreed to indemnify the selling stockholders
against certain losses, claims, damages and liabilities, including liabilities
under the Securities Act.
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WHERE YOU CAN FIND MORE INFORMATION
This prospectus is filed as a part of a Post-Effective Amendment No. 2 to
S-4 Registration Statement on Form S-3 Registration Statement to amend the
Registration Statement and update the prospectus included in the Registration
Statement. This prospectus does not contain all the information set forth in the
post-effective amendment to the Registration Statement or the exhibits and
schedules thereto filed in accordance with the rules and regulations of the SEC,
and we are incorporating omitted information by this reference. Statements made
in this prospectus concerning the contents of any contract, agreement or other
document filed as an exhibit to the registration statement are summaries of the
terms of the contracts, agreements or documents and are not necessarily
complete. You should read each exhibit for a more complete description of the
matters involved.
The post-effective amendment to the Registration Statement and the exhibits
filed with the SEC may be inspected, without charge, and copies may be obtained
at prescribed rates, at the SEC's Public Reference Room at 100 F Street, N.E.,
Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further
information on the operation of the Public Reference Room. The post-effective
amendment to the Registration Statement and other information filed by the
Company with the SEC also are available at the SEC's web site at
http://www.sec.gov., which contained reports, proxy statements and other
information about us filed electronically. Material filed by us may also be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York.
INCORPORATION BY REFERENCE
Under SEC rules we are disclosing additional information to you by
referring to documents that we have filed previously with the SEC. Information
that we incorporate by reference into this prospectus is considered to be part
of this prospectus, and information that we file later with the SEC will
automatically update and supersede this information. We incorporate by reference
the documents listed below:
1. Registration Statement filed on May 15, 1998 and declared effective on
November 23, 1998 (Registration No. 333-52835-99) (the "Registration
Statement"), and the prospectus dated November 23, 1998 filed pursuant to SEC
Rule 424(b)(3).
2. Our Annual Report on Form 10-K for fiscal year ended December 31, 2005
filed with the SEC on March 16, 2006.
3. The description of the common stock contained in the Registration
Statement.
In addition, all documents filed by us with the SEC pursuant to Sections
13(a), 13(c), 14 or 15(d) of the Exchange Act subsequent to the date of this
prospectus and prior to the filing of a post-effective amendment to the
registration statement containing this prospectus, which indicates that all
securities offered have been sold or which deregisters all of such securities
then remaining unsold, shall be deemed to be incorporated by reference in this
prospectus and to be a part hereof from the respective dates of filing of such
documents.
You may request a copy of these filings, at no cost upon written or oral
request by writing or telephoning us at the following address or telephone
number: Mission West Properties, Inc., 10050 Bandley Drive, Cupertino,
California 95014; Attention: President; Telephone: (408) 725-0700.
In addition, you may obtain a copy of these filings from the SEC as
described above in the section entitled "Where You Can Find More Information."
LEGAL MATTERS
We have received opinions of counsel from Graham & James, LLP, Palo Alto,
California and Ballard Spahr Andrews & Ingersoll, LLP, Baltimore, Maryland
concerning the validity of the shares of common stock offered for sale by this
prospectus. A partner of Graham & James, LLP who rendered services to us
beneficially owned 12,333 shares of common stock when the opinion of that law
firm was provided to us.
- 6 -
RECENT DEVELOPMENTS
In March 2006, we entered into a lease termination agreement with one
tenant with respect to a lease for approximately 92,692 rentable square feet
that expires in 2006. The tenant paid us a termination fee of approximately
$676,000, which we have recorded as revenue in the current period.
Also, in March 2006, one of our tenants, JDS Uniphase, entered into an
assignment of lease agreement with an unrelated party, M & M Real Estate Control
& Restructuring, LLC ("M&M"), in connection with leases for approximately
252,332 rentable square feet located in San Jose, California. M&M assumed all of
JDS Uniphase's remaining obligations under these leases, acquired certain
personal property of JDS Uniphase located on the premises and received a payment
of approximately $11,147,000. At the same time, we entered into a consent for
assignment of lease with both parties, and a mutual release agreement with JDS
Uniphase, pursuant to which all of the JDS Uniphase's obligations under these
leases have been effectively transferred to M&M. For financial accounting
purposes, we will report this transaction as a lease termination and record
approximately $11,147,000 as revenue in 2006. JDS Uniphase continues to be a
tenant with respect to 80,641 rentable square feet at the same location. M&M
must continue to perform all of the obligations under the assumed JDS Uniphase
leases and has the right to sublease any or all of the 252,332 square feet
vacated by JDS Uniphase for the remainder of the current lease terms, which
expire in 2006 and 2007.
EXPERTS
The financial statements, schedules and management's report on the
effectiveness of internal control over financial reporting incorporated by
reference in this prospectus have been audited by BDO Seidman, LLP, an
independent registered public accounting firm, to the extent and for the periods
set forth in their reports incorporated herein by reference, and are
incorporated herein in reliance upon such reports given upon the authority of
said firm as experts in auditing and accounting.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION
The expenses in connection with the issuance and distribution of the
securities being registered, other than underwriting discounts and commissions,
are estimated as follows:
Securities and Exchange Commission Registration Fee. Previously Paid $ ---
Legal Fees and Expenses*..................................................12,500.00
Accounting Fees and Expenses*..............................................7,500.00
Printing expenses/Transfer agent's fees*.....................................500.00
TOTAL*...................................................................$20,500.00
----------
* Estimated.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 2-418 of the Maryland General Corporation Law ("MGCL") permits a
Maryland corporation to include in its charter a provision limiting the
liability of its directors and officers to the corporation and its stockholders
for money damages except for liability resulting from (a) actual receipt of an
improper benefit or profit in money, property or services, or (b) active and
deliberate dishonesty established by a final judgment as being material to the
cause of action. Article IX of the Articles of Amendment and Restatement of
Mission West Properties, Inc. (the "Charter") contains such a provision which
eliminates such liability to the maximum extent permitted by the MGCL.
Section 2-418 of the MGCL requires a corporation (unless its charter
provides otherwise, which the Charter does not) to indemnify a director or
officer who has been successful, on the merits or otherwise, in the defense of
any proceeding to which he is made a party by reason of his service in that
capacity. The MGCL permits a corporation to indemnify its present and former
directors and officers, among others, against judgments, penalties, fines,
settlements, and reasonable expenses actually incurred by them in connection
with any proceeding to which they may be made a party by reason of their service
in those or other capacities unless it is established that (a) the act or
omission of the director or officer was material to the matter giving rise to
the proceeding and (i) was committed in bad faith or (ii) was the result of
active and deliberate dishonesty, (b) the director or officer actually received
an improper personal benefit in money, property or services or (c) in the case
of any criminal proceeding, the director or officer had reasonable cause to
believe that the act or omission was unlawful. However, under the MGCL, a
Maryland corporation may not indemnify for an adverse judgment in a suit by or
in the right of the corporation or for a judgment of liability on the basis that
personal benefit was improperly received, unless in either case a court orders
indemnification and then only for expenses. In addition, the MGCL permits a
corporation to advance reasonable expenses to a director or officer upon the
corporation's receipt of (a) a written affirmation by the director or officer of
his good faith belief that he has met the standard of conduct necessary for
indemnification by the corporation and (b) a written undertaking by him or on
his behalf to repay the amount paid or reimbursed by the corporation if it shall
ultimately be determined that the standard of conduct was not met.
The Charter also authorizes Mission West Properties, Inc. to the maximum
extent permitted by Maryland law, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a proceeding to
any present or former director or officer, or any individual who, while a
director of Mission West Properties, Inc. and at the request of Mission West
Properties, Inc., serves or has served another corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or
any other enterprise as a director, officer, partner or trustee of such
corporation, real estate investment trust, partnership, joint venture, trust,
employee benefit plan or other enterprise from and against any claim or
liability to which such person may become subject or which such person may incur
by reason of his status as a present or former director or officer of Mission
West Properties, Inc. Article XII of the Bylaws obligates Mission West
Properties, Inc., to the maximum extent permitted
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by Maryland law, to indemnify and to pay or reimburse reasonable expenses in
advance of final disposition of a proceeding to (i) any present or former
director or officer who is made a party to the proceeding by reason of his
service in that capacity or (ii) any individual who, while a director of Mission
West Properties, Inc. and at the request of Mission West Properties, Inc. serves
or has served another corporation, real estate, investment trust, partnership,
joint venture, trust, employee benefit plan or any other enterprise as a
director, officer, partner or trustee of such corporation, real estate
investment trust, partnership, joint venture, trust, employee benefit plan or
other enterprise and who is made a party to the proceeding by reason of his
service in that capacity. The Charter and Bylaws also permit Mission West
Properties, Inc. to indemnify and advance expenses to any person who served a
predecessor of Mission West Properties, Inc. in any of the capacities described
above and any employee or agent of Mission West Properties, Inc. and or a
predecessor of Mission West Properties, Inc.
ITEM 16. EXHIBITS.
Exhibit
Number Description
------- -----------
2.1 Merger Agreement and Plan of Merger between Mission West Properties and
Mission West Properties, Inc.(1)
3.1 Articles of Amendment and Restatement of Mission West Properties, Inc(1)
3.2 Restated Bylaws of Mission West Properties, Inc.(1)
5.1 Opinion of Graham & James LLP regarding the validity of the securities
issued by the Company to be exchanged in the Reincorporation Merger(2)
5.2 Opinion of Ballard Spahr Andrews & Ingersoll LLP regarding the validity
of securities issued by Mission West-Maryland in the Reincorporation
Merger(2)
10.1.1 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. (3)
10.1.2 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. I(3)
10.1.3 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. II(3)
10.1.4 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. III(3)
10.2 Exchange Rights Agreement between Mission West Properties, Inc. and the
limited partners in the limited partnerships(3)
10.4.1 Acquisition Agreement, dated as of May 14, 1998, among Mission West
Properties, Inc., Certain Partnerships and the Berg Group(1)
10.4.2 Amendment to Acquisition Agreement, dated as of July 1, 1998(1)
10.6 Pending Projects Acquisition Agreement among Mission West Properties,
Inc., the Operating Partnership and the members of the Berg Group(3)
10.7 Berg Land Holdings Option Agreement between Mission West Properties,
Inc. and certain members of the Berg Group(3)
23.1 Consent of Graham & James LLP (included in the opinion referenced in
Exhibit 5.1)
23.2 Consent of Ballard Spahr Andrews & Ingersoll LLP (included in the
opinion referenced in Exhibit 5.2)
23.3 Consent of BDO Seidman, LLP, Independent Registered Public Accounting
Firm
24.1 Powers of Attorney (included in the signature page to this
Post-Effective Amendment No. 2 to S-4 Registration Statement)
------------------------------
(1) Incorporated herein by reference to the same-numbered exhibit to the
Company's Registration Statement on Form S-4/A filed on July 20, 1998 and
declared effective on November 23, 1998.
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(2) Incorporated herein by reference to the same-numbered exhibit to the
Registration Statement on Form S-4/A filed on November 20, 1998 and
declared effective on November 23, 1998.
(3) Incorporated herein by reference to the same-numbered exhibit to the
Company's Post-effective Amendment No. 1 to Registration Statement on Form
S-4 filed on Form S-3 on February 11, 1999 (Commission File No.
333-52835-99)
ITEM 17. UNDERTAKINGS
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933.
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or
the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the registration
statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that
which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected
in the form of prospectus filed with the Commission pursuant
to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the
maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii)To include any material information with respect to the
plan of distribution not previously disclosed in the
registration statement or any material change to such
information in the registration statement;
Provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(iii)
above do not apply if the registration statement is on Form S-3 or Form F-3 and
the information required to be included in a post-effective amendment by those
paragraphs is contained in reports filed with or furnished to the Commission by
the Registrant pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement, or is
contained in a form of prospectus filed pursuant to Rule 424(b) that is part of
the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall
be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the
Securities Act of 1933 to any purchaser:
(i) If the Registrant is relying on Rule 430B:
(A) Each prospectus filed by the Registrant pursuant to
Rule 424(b)(3) shall be deemed to be part of the
registration statement as of the date the filed
prospectus was deemed part of and included in the
registration statement; and
(B) Each prospectus required to be filed pursuant to Rule
424(b)(2), (b)(5), or (b)(7) as part of a registration
statement in reliance on Rule 430B relating to an
offering made pursuant to
- II-3 -
Rule 415(a)(1)(i), (vii), or (x) for the purpose of
providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part
of and included in the registration statement as of the
earlier of the date such form of prospectus is first
used after effectiveness or the date of the first
contract of sale of securities in the offering
described in the prospectus. As provided in Rule 430B,
for liability purposes of the issuer and any person
that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration
statement relating to the securities in the
registration statement to which that prospectus
relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide
offering thereof. Provided, however, that no statement
made in a registration statement or prospectus that is
part of the registration statement or made in a
document incorporated or deemed incorporated by
reference into the registration statement or prospectus
that is part of the registration statement will, as to
a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement
that was made in the registration statement or
prospectus that was part of the registration statement
or made in any such document immediately prior to such
effective date; or
(ii) If the Registrant is subject to Rule 430C, each prospectus
filed pursuant to Rule 424(b) as part of a registration
statement relating to an offering, other than registration
statements relying on Rule 430B or other than prospectuses
filed in reliance on Rule 430A, shall be deemed to be part
of and included in the registration statement as of the date
it is first used after effectiveness. Provided, however,
that no statement made in a registration statement or
prospectus that is part of the registration statement or
made in a document incorporated or deemed incorporated by
reference into the registration statement or prospectus that
is part of the registration statement will, as to a
purchaser with a time of contract of sale prior to such
first use, supersede or modify any statement that was made
in the registration statement or prospectus that was part of
the registration statement or made in any such document
immediately prior to such date of first use.
(5) That, for the purpose of determining liability of the Registrant
under the Securities Act of 1933 to any purchaser in the initial
distribution of the securities:
The undersigned Registrant undertakes that in a primary offering
of securities of the undersigned Registrant pursuant to this
registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities
are offered or sold to such purchaser by means of any of the
following communications, the undersigned Registrant will be a
seller to the purchaser and will be considered to offer or sell
such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned
Registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering
prepared by or on behalf of the undersigned Registrant or
used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating
to the offering containing material information about the
undersigned Registrant or its securities provided by or on
behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering
made by the undersigned Registrant to the purchaser.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each
filing of the Registrant's annual report pursuant to Section 13(a) or
15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial
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bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Registrant pursuant to the provisions
described in Item 15 above, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by
it is against public policy as expressed in the Act and will be
governed by the final adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Post-Effective
Amendment No. 2 to Form S-4 Registration Statement on Form S-3 to be signed on
its behalf by the undersigned, thereunto duly authorized, in the City of
Cupertino, State of California on March 30, 2006.
Mission West Properties, Inc.
By:/s/ Carl E. Berg
-----------------------------
Carl E. Berg
Chairman of the Board, Chief Executive
Officer (Principal Executive Officer)
By:/s/ Wayne N. Pham
-----------------------------
Wayne N. Pham
Vice President of Finance and Controller
(Principal Accounting Officer)
- II-5 -
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed below by the following persons in the
capacities indicated, effective March 30, 2006.
Signature Title
--------- -----
/s/ Carl E. Berg Chairman of the Board, Chief Executive
--------------------------- Officer and Director
Carl E. Berg
/s/ John C. Bolger Director
---------------------------
John C. Bolger
/s/ William A. Hasler Director
---------------------------
William A. Hasler
/s/ Lawrence B. Helzel Director
---------------------------
Lawrence B. Helzel
By: /s/ Carl E. Berg
------------------------
Carl E. Berg
Attorney-in-fact
EXHIBIT INDEX
Exhibit
Number Description
------ -----------
2.1 Merger Agreement and Plan of Merger between Mission West Properties and
Mission West Properties, Inc.(1)
3.1 Articles of Amendment and Restatement of Mission West Properties, Inc(1)
3.2 Restated Bylaws of Mission West Properties, Inc. (1)
5.1 Opinion of Graham & James LLP regarding the validity of the securities
issued by the Company to be exchanged in the Reincorporation Merger(2)
5.2 Opinion of Ballard Spahr Andrews & Ingersoll LLP regarding the validity
of securities issued by Mission West-Maryland in the Reincorporation
Merger(2)
10.1.1 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P.(3)
10.1.2 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. I(3)
10.1.3 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. II(3)
10.1.4 Amended and Restated Agreement of Limited Partnership of Mission West
Properties, L.P. III(3)
10.2 Exchange Rights Agreement between the Company and the Limited
Partners(3)
10.4.1 Acquisition Agreement, dated as of May 14, 1998, among the Company,
Certain Partnerships and the Berg Group(1)
10.4.2 Amendment to Acquisition Agreement, dated as of July 1, 1998(1)
10.6 Pending Projects Acquisition Agreement among the Company, the Operating
Partnership and the members of the Berg Group(3)
10.7 Berg Land Holdings Option Agreement between the Company and certain
members of the Berg Group(3)
23.1 Consent of Graham & James LLP (included in the opinion referenced in
Exhibit 5.1)
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included in the opinion
referenced in Exhibit 5.2)
23.3 Consent of BDO Seidman, LLP, Independent Registered Public Accounting
Firm
24.1 Powers of Attorney (included in the signature page to this
Post-Effective Amendment No. 2 to S-4 Registration Statement)
-------------------------
(1) Incorporated herein by reference to the same-numbered exhibit to the
Company's Registration Statement on Form S-4/A filed on July 20, 1998 and
declared effective on November 23, 1998.
(2) Incorporated herein by reference to the same-numbered exhibit to the
Registration Statement on Form S-4/A filed on November 20, 1998 and
declared effective on November 23, 1998.
(3) Incorporated herein by reference to the same-numbered exhibit to the
Company's Post-effective Amendment No. 1 to Registration Statement on Form
S-4 filed on Form S-3 on February 11, 1999 (Commission File No.
333-52835-99)
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