1,154,194 Shares
MARK VII, INC.
Common Stock
UNDERWRITING AGREEMENT
, 1995
ALEX. BROWN & SONS INCORPORATED
135 East Baltimore Street
Baltimore, Maryland 21202
Gentlemen:
Roger M. Crouch, The Sugar Lakes Foundation, The Catherine Fenner Crouch
Charitable Remainder Unitrust I, Rosalie C. Sisson, and Rosalie C. Sisson, as
custodian for Alexandra Catherine Sisson (collectively, the "Selling
Shareholders") propose to sell to you as underwriter (the "Underwriter") an
aggregate of 1,154,194 shares (the "Firm Shares") of the Common Stock, par value
$0.10 per share, of Mark VII, Inc., a Missouri corporation (the "Company"). The
respective amounts of the Firm Shares to be sold by the Selling Shareholders are
set forth opposite their names in Schedule I hereto. The Selling Shareholders
also propose to sell at the Underwriter's option an aggregate of up to 115,419
additional shares of the Company's Common Stock (the
"Option Shares") as set forth in Schedule II below.
As the Underwriter, you have advised the Company and the Selling Shareholders
that you are willing to purchase the Firm Shares, plus the Option Shares if you
elect to exercise the over-allotment option in whole or in part. The Firm Shares
and the Option Shares (to the extent the aforementioned option is exercised) are
herein collectively called the "Shares."
In consideration of the mutual agreements contained herein and of the
interests of the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company and the Selling
Shareholders.
(a) The Company represents and warrants as follows:
(i) A registration statement on Form S-3 (File No. 33- ) with respect to
the Shares has been prepared by the Company in conformity in all material
respects with the requirements of the Securities Act of 1933, as amended (the
"Act") and the Rules and Regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has been
filed with the Commission under the Act. The Company has complied with the
conditions for the use of Form S-3. Copies of such registration statement,
including any amendments thereto, the preliminary prospectuses (meeting the
requirements of Rule 430A of the Rules and Regulations) contained therein and
the exhibits, financial statements and schedules, as finally amended and
revised, have heretofore been delivered by the Company to you. Such registration
statement, herein referred to as the"Registration Statement," which shall be
deemed to include all information omitted therefrom in reliance upon Rule 430A
and contained in the Prospectus referred to below, has been declared effective
by the Commission under the Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this Agreement. The form
of prospectus first filed by the Company with the Commission pursuant to its
Rule 424(b) and Rule 430A is herein referred to as the "Prospectus." Each
preliminary prospectus included in the Registration Statement prior to the time
it becomes effective is herein referred to as a"Preliminary Prospectus." Any
reference herein to any Preliminary Prospectus or the Prospectus shall be deemed
to refer to and include the documents incorporated by reference therein, as of
the date of such Preliminary Prospectus or Prospectus, as
the case may be, and, in the case of any reference herein to any Prospectus,
also shall be deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the Commission after the
date of filing of the Prospectus under Rules 424(b) and 430A, and prior to the
termination of the offering of the Shares by the Underwriter.
(ii) The Company has been duly organized and is validly existing as a
corporation in good standing under the laws of the State of Missouri, with
corporate power and authority to own its properties and conduct its business as
described in the Registration Statement; each of the subsidiaries of the Company
as listed in Exhibit A hereto (collectively, the "Subsidiaries") has been duly
organized and is validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation, with corporate power and
authority to own or lease its properties and conduct its business as described
in the Registration Statement; the Company and each of the Subsidiaries are duly
qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification and where failure to qualify would
have a materially adverse effect upon the business or properties of the Company
and the Subsidiaries taken as a whole; the outstanding shares of capital stock
of each of the Subsidiaries have been duly authorized and validly issued, are
fully paid and non-assessable and are owned by the Company or another Subsidiary
free and clear of all liens, encumbrances and security interests, except as set
forth in Exhibit B; and, except as set forth in Exhibit B no options, warrants
or other rights to purchase, agreements or other obligations to issue or other
rights to convert any obligations into shares of capital stock or ownership
interests in the Subsidiaries are outstanding.
(iii) The outstanding shares of Common Stock of the Company, including all
Shares to be sold by the Selling Shareholders, have been duly authorized and
validly issued and are fully paid and non-assessable; and no preemptive rights
of stockholders exist with respect to any of the Shares.
(iv) The Shares conform with the statements concerning them under the
caption "Description of Capital Stock" in the Registration Statement.
(v) The Commission has not issued an order preventing or suspending the
use of any Preliminary Prospectus relating to the
proposed offering of the Shares nor instituted proceedings for that purpose. The
Registration Statement and the Prospectus and any amendments or supplements
thereto in all material respects conform or will conform, as the case may be, to
the requirements of, the Act and the Rules and Regulations. The documents
incorporated by reference in the Prospectus, at the time they were filed with
the Commission, conformed in all material respects to the requirements of the
Securities Exchange Act of 1934 or the Act, as applicable, and the Rules and
Regulations of the Commission thereunder. Neither the Registration Statement nor
any amendment thereto, and neither the Prospectus nor any supplement thereto,
including any documents incorporated by reference therein, contains or will
contain, as the case may be, any untrue statement of a material fact or omits or
will omit to state any material fact required to be stated therein or necessary
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; provided, however, that the Company makes no
representations or warranties as to information contained in or omitted from the
Registration Statement or the Prospectus, or any such amendment or supplement,
or any documents incorporated by reference therein, in reliance upon, and in
conformity with, written information furnished to the Company by or on behalf of
the Underwriter, specifically for use in the preparation thereof.
(vi) The consolidated financial statements of the Company and the
Subsidiaries, together with related notes and schedule as set forth or
incorporated by reference in the Registration Statement, present fairly the
financial position and the results of operations of the Company and the
Subsidiaries consolidated, at the indicated dates and for the indicated periods.
Such financial statements have been prepared in accordance with generally
accepted accounting principles, consistently applied throughout the periods
involved, and all adjustments necessary for a fair presentation of results for
such periods have been made. The selected and summary financial and statistical
data included or incorporated by reference in the Registration Statement present
fairly the information shown therein and have been compiled on a basis
consistent with the financial statements presented therein.
(vii) There is no action or proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of the Subsidiaries before any
court or administrative agency which is reasonably likely to result in any
materially adverse change in the business or condition of the Company and of the
Subsidiaries taken as a whole, except as set forth in the Registration
Statement.
(viii) The Company and the Subsidiaries have good and marketable title to
all of the properties and assets reflected in the financial statements
hereinabove described (or as described in the Registration Statement), subject
to no lien, mortgage, pledge, charge or encumbrance of any kind except those
reflected in such financial statements (or as described in the Registration
Statement) or which are not material in amount. The Company and the Subsidiaries
occupy their leased properties under valid and binding leases conforming to the
description thereof set forth in the Registration Statement.
(ix) The Company and the Subsidiaries have filed all Federal, State and
foreign, if any, income tax returns which have been required to be filed and
have paid all taxes indicated by said returns and all assessments received by
them or any of them to the extent that such taxes have become due, and are not
being contested in good faith, and that failure to file would result in a
materially adverse effect on the business and operations of the Company and the
Subsidiaries taken as a whole.
(x) Since the respective dates as of which information is given in the
Registration Statement, as it may be amended or supplemented, there has not been
any materially adverse change or, to the Company's knowledge, any development
involving a prospective materially adverse change in or affecting the business,
operations or financial condition of the Company and its Subsidiaries taken as a
whole, whether or not occurring in the ordinary course of business, other than
general economic and industry conditions, and there has not been any material
transaction entered into by the Company or the Subsidiaries, other than
transactions in the ordinary course of business and changes and transactions
contemplated by the Registration Statement, as it may be amended or
supplemented. The Company and the Subsidiaries have no material contingent
obligations which are not disclosed in the Registration Statement, as it may be
amended or supplemented.
(xi) Except as set forth in the Registration Statement, neither the Company
nor any of the Subsidiaries is in default under any agreement, lease, contract,
indenture or other instrument or obligation to which it is a party or by which
it or any of its properties is bound and which default is of material
significance in respect of the business or financial condition of
the Company and the Subsidiaries taken as a whole. The consummation of the
transactions herein contemplated and the fulfillment of the terms hereof will
not conflict with or result in a breach of any of the terms or provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company or any Subsidiary is a party, or of
the Charter or by-laws of the Company or any order, rule or regulation
applicable to the Company or any Subsidiary of any court or of any regulatory
body or administrative agency or other governmental body having jurisdiction.
(xii) Each approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other governmental body
necessary in connection with the execution and delivery by the Company of this
Agreement and the consummation of the transactions herein contemplated (except
such additional steps as may be required by the National Association of
Securities Dealers, Inc. (the "NASD") or may be necessary to qualify the Shares
for public offering by the Underwriter under State securities or Blue Sky laws)
has been obtained or made and is in full force and effect.
(xiii) The Company and each of the Subsidiaries hold all material licenses,
certificates and permits from governmental authorities which are necessary to
the conduct of their businesses; and neither the Company nor any of the
Subsidiaries has infringed any patents, patent rights, trade names, trademarks
or copyrights, which infringement would result in a materially adverse change in
the business of the Company and the Subsidiaries taken as a whole.
(xiv) Arthur Andersen llp, who have audited certain of the financial
statements filed with the Commission as part of, or incorporated by reference
in, the Registration Statement, are independent public accountants as required
by the Act and the Rules and Regulations.
(xv) To the best of the Company's knowledge, there are no affiliations
between any member of the National Association of Securities Dealers, Inc. and
any of the Company's directors, officers or 5% or greater security holders,
except as set forth in the Registration Statement or as disclosed to the
Underwriter in writing.
(b) Each of the Selling Shareholders severally represents and
warrants as follows:
(i) Such Selling Shareholder has and at the Closing Date or Option Closing
Date (as hereinafter defined), as the case may be, will have good and valid
title to the Firm Shares or Option Shares to be sold by such Selling
Shareholder, free of any liens, encumbrances, equities and claims, and full
right, power and authority to effect the sale and delivery of such Firm Shares
or Option Shares; and upon the delivery of and payment for such Firm Shares or
Option Shares pursuant to this Agreement, good and valid title thereto, free of
any liens, encumbrances, equities and claims, will be transferred to the
Underwriter.
(ii) The consummation by such Selling Shareholder of the transactions
herein contemplated and the fulfillment by such Selling Shareholder of the terms
hereof will not result in a breach of any of the terms and provisions of, or
constitute a default under, any indenture, mortgage, deed of trust or other
agreement or instrument to which such Selling Shareholder is a party, or of any
order, rule or regulation applicable to such Selling Shareholder of any court or
of any regulatory body or administrative agency or other governmental body
having jurisdiction.
(iii) Such Selling Shareholder has not taken and will not take, directly or
indirectly, any action designed to, or which has constituted, or which might
reasonably be expected to cause or result in stabilization or manipulation of
the price of the Common Stock of the Company.
(iv) No offering, sale or other disposition of any Common Stock of the
Company will be made for a period of 90 days after the date of this Agreement,
directly or indirectly, by such Selling Shareholder otherwise than hereunder,
with the prior written consent of the Underwriter, or pursuant to the exercise
of options granted to Thomas F. Laughlin pursuant to a Stock Purchase Agreement
between Messrs. Crouch and Laughlin effective June 1, 1985, as described in the
section captioned "Principal and Selling Shareholders" in the Prospectus.
(v) Without having undertaken to determine independently the accuracy or
completeness of either the representations and warranties of the Company
contained herein or the information contained in the Registration Statement,
such Selling Shareholder has no reason to believe that the representations and
warranties of the Company contained in this Section 1 are not true and
correct, is familiar with the Registration Statement and has no knowledge of any
material fact, condition or information not disclosed in the Registration
Statement which has adversely affected or may adversely affect the business of
the Company or any of the Subsidiaries; and the sale of the Firm Shares or
Option Shares, as the case may be, by such Selling Shareholder pursuant hereto
is not prompted by any material, non-public information concerning the Company
or any of the Subsidiaries which is not set forth in the Registration Statement.
In order to document the Underwriter's compliance with the reporting and
withholding provisions of the Tax Equity and Fiscal Responsibility Act of 1982
and the Interest and Dividend Tax Compliance Act of 1983 with respect to the
transactions herein contemplated, each of the Selling Shareholders agrees to
deliver to you prior to or at the Closing Date a properly completed and executed
United States Treasury Department Form W-9 (or other applicable from or
statement specified by Treasury Department regulations in lieu thereof).
2. Purchase, Sale and Delivery of the Firm Shares. On the basis of the
representations, warranties and covenants herein contained, and subject to the
conditions herein set forth, the Selling Shareholders agree to sell to the
Underwriter, and the Underwriter agrees to purchase, at a price of $ per
share, the Firm Shares. The obligations of each of the Selling Shareholders
shall be several and not joint.
Certificates in negotiable form for the total number of the Firm Shares to
be sold hereunder by the Selling Shareholders have been placed in custody with
Lathrop & Norquist, L.C. as custodian (the "Custodian") pursuant to the
Custodian Agreement executed by each Selling Shareholder for delivery of all
Firm Shares to be sold hereunder by the Selling Shareholders. Each of the
Selling Shareholders specifically agrees that the Firm Shares represented by the
certificates held in custody for the Selling Shareholders under the Custodian
Agreement are subject to the interests of the Underwriter hereunder, that the
arrangements made by the Selling Shareholders for such custody are to that
extent irrevocable, and that the obligations of the Selling Shareholders
hereunder shall not be terminable by any act or deed of the Selling Shareholders
(or by any other person, firm or corporation including the Company, the
Custodian or the Underwriter) or by operation of law (including the death of an
individual Selling Shareholder or the dissolution of a Selling Shareholder that
is a trust or other
entity) or by the occurrence of any other event or events, except as set forth
in the Custodian Agreement. If any such event should occur prior to the delivery
to the Underwriter of the Firm Shares hereunder, certificates for the Firm
Shares shall be delivered by the Custodian in accordance with the terms and
conditions of this Agreement as if such event has not occurred. The Custodian is
authorized to receive and acknowledge receipt of the proceeds of sale of the
Firm Shares held by it against delivery of such Firm Shares.
Payment for the Firm Shares to be sold by the Selling Shareholders hereunder
is to be made in New York Clearing House funds by certified or bank cashier's
checks drawn to the order of "Lathrop & Norquist, L.C., Custodian" in each case
against delivery of certificates therefor to the Underwriter. Such payment and
delivery are to be made at the offices of Alex. Brown & Sons Incorporated, 135
East Baltimore Street, Baltimore, Maryland, at 10:00 A.M., Baltimore time, on
the fifth business day after the date of this Agreement or at such other time
and date not later than five business days thereafter as you and the Company
shall agree upon, such time and date being herein referred to as the "Closing
Date." As used herein, "business day" means a day on which the New York Stock
Exchange is open for trading and on which banks in New York are open for
business and are not permitted by law or executive order to be closed. The
certificates for the Firm Shares will be delivered in such denominations and in
such registrations as the Underwriter requests in writing not later than the
third full business day prior to the Closing Date, and will be made available
for inspection by the Underwriter at least one business day prior to the Closing
Date.
In addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the Selling
Shareholders hereby grant an option to the Underwriter to purchase the Option
Shares at the price per share as set forth in the first paragraph of this
Section 2. The option granted hereby may be exercised in whole or in part but
only once and at any time upon written notice given within 30 days after the
date of this Agreement, by you to the Company and to the Selling Shareholders
setting forth the number of Option Shares as to which you are exercising the
option, the names and denominations in which the Option Shares are to be
registered and the time and date at which such certificates are to be delivered.
The time and date at which certificates for Option Shares are to be delivered
shall be
determined by you but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the
Closing Date (such time and date being herein referred to as the "Option Closing
Date"). If the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as the Option
Closing Date. The option with respect to the Option Shares granted hereunder may
be exercised only to cover over- allotments in the sale of the Firm Shares by
the Underwriter. You, as the Underwriter, may cancel such option at any time
prior to its expiration by giving written notice of such cancellation to the
Company and the Selling Shareholders. To the extent, if any, that the option is
exercised, payment for the Option Shares shall be made on the Option Closing
Date in New York Clearing House funds by certified or bank cashier's checks
drawn to the order of "Lathrop & Norquist, L.C., Custodian" against delivery of
certificates therefor at the offices of Alex. Brown & Sons Incorporated, 135
East Baltimore Street, Baltimore, Maryland.
3. Offering by the Underwriter. It is understood that the Underwriter is
to make a public offering of the Firm Shares as soon as it deems it advisable to
do so. The Firm Shares are to be offered to the public at the Price to Public
set forth in the Prospectus. The Underwriter may from time to time thereafter
change the public offering price and other selling terms. To the extent, if at
all, that any Option Shares are purchased pursuant to Section 2 hereof, the
Underwriter will offer them to the public on the foregoing terms.
4. Covenants of the Company. The Company covenants and agrees with the
Underwriter and the Selling Shareholders that:
(a) The Company will (i) prepare and timely file with the Commission under
Rule 424(b) of the Rules and Regulations a Prospectus containing information
previously omitted at the time of effectiveness of the Registration Statement in
reliance on Rule 430A of the Rules and Regulations, (ii) not file any amendment
to the Registration Statement or supplement to the Prospectus or document
incorporated by reference therein of which the Underwriter shall not previously
have been advised and furnished with a copy or to which the Underwriter shall
have reasonably objected in writing or which is not in compliance with the Rules
and Regulations, and (iii) file on a timely basis all reports and any definitive
proxy or information statements required to be filed by the Company with the
Commission subsequent to the date of the Prospectus and prior to the
termination of the offering of the Shares by the Underwriter.
(b) The Company will advise the Underwriter promptly of any request of the
Commission for amendment of the Registration Statement or for supplement to the
Prospectus or for any additional information, or of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the use of the Prospectus or of the institution of any proceedings
for that purpose, and the Company will use its best efforts to prevent the
issuance of any such stop order preventing or suspending the use of the
Prospectus and to obtain as soon as possible the lifting thereof, if issued.
(c) The Company will cooperate with the Underwriter in endeavoring to
qualify the Shares for sale under the securities laws of such jurisdictions as
the Underwriter may reasonably have designated in writing and will make such
applications, file such documents, and furnish such information as may be
reasonably required for that purpose, provided the Company shall not be required
to qualify as a foreign corporation or to file a general consent to service of
process in any jurisdiction where it is not now so qualified or required to file
such a consent. The Company will, from time to time, prepare and file such
statements, reports, and other documents, as are or may be required to continue
such qualifications in effect for so long a period as the Underwriter may
reasonably request for distribution of the Shares.
(d) The Company will deliver to, or upon the order of, the Underwriter,
from time to time, as many copies of any Preliminary Prospectus as the
Underwriter may reasonably request. The Company will deliver to, or upon the
order of, the Underwriter during the period when delivery of a Prospectus is
required under the Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Underwriter may reasonably request.
The Company will deliver to the Underwriter at or before the Closing Date, two
signed copies of the Registration Statement and all amendments thereto including
all exhibits filed therewith, and will deliver to the Underwriter such number of
copies of the Registration Statement, including documents incorporated by
reference therein, but without exhibits, and of all amendments thereto, as the
Underwriter may reasonably request.
(e) If during the period in which a prospectus is required by law to be
delivered by the Underwriter or a dealer, any event
shall occur as a result of which, in the judgment of the Company or in the
opinion of counsel for the Underwriter, it becomes necessary to amend or
supplement the Prospectus in order to make the statements therein, in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company promptly will
either (i) prepare and file with the Commission an appropriate amendment to the
Registration Statement or supplement to the Prospectus or (ii) prepare and file
with the Commission an appropriate filing under the Securities Exchange Act of
1934 which shall be incorporated by reference in the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of the
circumstances when it is so delivered, be misleading, or so that the Prospectus
will comply with law.
(f) The Company will make generally available to its security holders, as
soon as it is practicable to do so, but in any event not later than 15 months
after the effective date of the Registration Statement, an earnings statement
(which need not be audited) in reasonable detail, covering a period of at least
12 consecutive months beginning after the effective date of the Registration
Statement, which earnings statement shall satisfy the requirements of Section
11(a) of the Act and Rule 158 of the Rules and Regulations and will advise you
in writing when such statement has been so made available.
(g) The Company will, for a period of five years from the Closing Date,
deliver to the Underwriter copies of annual reports and copies of all other
documents, reports and information furnished by the Company to its stockholders
or filed with any securities exchange pursuant to the requirements of such
exchange or with the Commission pursuant to the Act or the Securities Exchange
Act of 1934, as amended. The Company will deliver to the Underwriter similar
reports with respect to significant subsidiaries, as that term is defined in the
Rules and Regulations, which are not consolidated in the Company's financial
statements.
(h) No offering, sale or other disposition of any Common Stock of the
Company will be made for a period of 90 days after the date of this Agreement,
directly or indirectly, by the Company otherwise than hereunder or with the
prior written consent of the Underwriter, except that the Company may, without
such consent, issue shares upon the exercise of options outstanding on the date
of this Agreement issued pursuant to the
Company's employee benefit plans or issued as consideration for future
acquisitions.
5. Costs and Expenses. The Company will pay all costs, expenses and fees
incident to the performance of its obligations and those of the Selling
Shareholders under this Agreement, including, without limiting the generality of
the foregoing, the following: accounting fees of the Company; the fees and
disbursements of counsel for the Company; the cost of printing and delivering
to, or as requested by, the Underwriter copies of the Registration Statement,
Preliminary Prospectuses, the Prospectus, this Agreement, the Blue Sky Survey
and any supplements or amendments thereto; the filing fees of the Commission;
the filing fees and expenses excluding the fees and disbursements of counsel for
the Underwriter incident to securing any required review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
the Shares; and the expenses, including the fees and disbursements of counsel
for the Underwriter, incurred in connection with the qualification of the Shares
under State securities or Blue Sky laws. The Selling Shareholders will promptly
reimburse the Company for any and all expenses incurred by the Company pursuant
to this Agreement (including, but not limited to, accounting and legal fees,
printing costs, filing fees and blue sky fees, but excluding travel and
out-of-pocket expenses incurred in connection with the Company's marketing
efforts). The Selling Shareholders will also pay any and all underwriting
discounts and commissions, and will pay the legal fees of Lathrop & Norquist,
L.C., counsel for the Selling Shareholders. The obligations of the Selling
Shareholders shall be satisfied by the Custodian out of the proceeds of sale of
the Shares. Any transfer taxes imposed on the sale of the Shares to the
Underwriter will be paid by the Selling Shareholders pro rata. The Company shall
not, however, be required to pay for any of the Underwriter's expenses (other
than those related to qualification under State securities or Blue Sky laws)
except that, if this Agreement shall not be consummated because the conditions
in Section 7 hereof are not satisfied, or because this Agreement is terminated
by the Underwriter pursuant to Section 6 hereof, or by reason of any failure,
refusal or inability on the part of the Company or the Selling Shareholders to
perform any undertaking or satisfy any condition of this Agreement or to comply
with any of the terms hereof on its part to be performed, unless such failure to
satisfy said condition or to comply with said terms be due to the default or
omission of the Underwriter, then the Company shall reimburse the Underwriter
for reasonable out-of-pocket expenses,
including fees and disbursements of counsel, reasonably incurred in connection
with investigating, marketing and proposing to market the Shares or in
contemplation of performing their obligations hereunder; but the Company and the
Selling Shareholders shall not in any event be liable to the Underwriter for
damages on account of loss of anticipated profits from the sale by them of the
Shares.
6. Conditions of Obligations of the Underwriter. The obligations of the
Underwriter to purchase the Firm Shares on the Closing Date and the Option
Shares, if any, on the Option Closing Date are subject to the accuracy, as of
the Closing Date or the Option Closing Date, as the case may be, of the
representations and warranties of the Company and the Selling Shareholders
contained herein, and to the performance by the Company and the Selling
Shareholders of their covenants and obligations hereunder and to the following
additional conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued and no
proceedings for that purpose shall have been taken or, to the knowledge of the
Company or the Selling Shareholders, shall be contemplated by the Commission.
(b) The Underwriter shall have received on the Closing Date or the Option
Closing Date, as the case may be, the opinion of Shook, Hardy & Bacon P.C.,
counsel for the Company, dated the Closing Date or the Option Closing Date, as
the case may be, addressed to the Underwriter to the effect that:
(i) The Company has authorized and outstanding capital stock as set
forth in, or incorporated by reference in, the Prospectus; the certificates for
the Shares are in due and proper form; and, the shares of Common Stock,
including the Option Shares, if any, to be sold by the Selling Shareholders
pursuant to this Agreement have been duly authorized and are validly issued,
fully paid and non-assessable.
(ii) The Registration Statement has become effective under the Act and,
to the best of the knowledge of such counsel, no stop order proceedings with
respect thereto have been instituted or are pending or threatened under the Act.
(iii) The Registration Statement, all Preliminary Prospectuses, the
Prospectus and each amendment or supplement thereto and document incorporated by
reference therein comply
as to form in all material respects with the requirements of the Act or the
Securities Exchange Act of 1934, as applicable and the applicable rules and
regulations thereunder (except that such counsel need express no opinion as to
the financial statements, schedules and other financial or statistical
information included or incorporated by reference therein).
(iv) To such counsel's actual knowledge, there are no contracts or
documents required to be filed as exhibits to or incorporated by reference in
the Registration Statement or described in the Registration Statement or the
Prospectus which are not so filed, incorporated by reference or described as
required, and such contracts and documents as are summarized in the Registration
Statement or the Prospectus are fairly summarized in all material respects.
(v) This Agreement has been duly authorized, executed and delivered by
the Company.
(vi) No approval, consent, order, authorization, designation,
declaration or filing by or with any regulatory, administrative or other
governmental body is necessary in connection with the execution and delivery of
this Agreement and the consummation of the transactions herein contemplated
(other than as may be required by the National Association of Securities
Dealers, Inc. or as required by State securities and Blue Sky laws as to which
such counsel need express no opinion) except such as have been obtained or made,
specifying the same.
In rendering such opinion, Shook, Hardy & Bacon P.C. may rely as to matters
governed by the laws of states other than Missouri or Federal laws on local
counsel in such jurisdictions, provided that in each case Shook, Hardy & Bacon
P.C. shall state that they believe that they and the Underwriter are justified
in relying on such other counsel. In addition to the matters set forth above,
such opinion shall also include a statement to the effect that nothing has come
to the attention of such counsel which leads them to believe that the
Registration Statement, as of the time it became effective under the Act, the
Prospectus or any amendment or supplement thereto, on the date it was filed
pursuant to Rule 424(b) or any of the documents incorporated by reference
therein, as of the date of effectiveness of the Registration Statement or, in
the case of documents incorporated by reference in the Prospectus after the date
of effectiveness of the Registration Statement, as of the respective dates when
such
documents were filed with the Commission and the Registration Statement and the
Prospectus, or any amendment or supplement thereto, as of the Closing Date or
the Option Closing Date, as the case may be, contain an untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading (except that such counsel need express no
view as to financial statements, schedules and other financial or statistical
information included or incorporated by reference therein). With respect to such
statement, Shook, Hardy & Bacon P.C. may state that their belief is based upon
the procedures set forth therein, but is without independent check and
verification.
(c) The Underwriter shall have received on the Closing Date or the Option
Closing Date, as the case may be, the opinion of James T. Graves, Esq., Vice
Chairman, Secretary, and General Counsel of the Company, dated the Closing Date
or the Option Closing Date, as the case may be, addressed to the Underwriter to
the effect that:
(i) The Company has been duly organized as a corporation in good
standing under the laws of the State of Missouri, with corporate power and
authority to own its properties and conduct its business as described in the
Prospectus; each of the Subsidiaries has been duly organized as a corporation in
good standing under the laws of the jurisdiction of its incorporation, with
corporate power and authority to own its properties and conduct its business as
described in the Prospectus; the Company and each of the Subsidiaries are duly
qualified to transact business in all jurisdictions in which the conduct of
their business requires such qualification, and in which the failure to qualify
would have a materially adverse effect upon the business of the Company and the
Subsidiaries taken as a whole; and the outstanding shares of capital stock of
each of the Subsidiaries have been duly authorized and validly issued, are fully
paid and non-assessable and are owned by the Company or a Subsidiary; and, to
the best of such counsel's knowledge, the outstanding shares of capital stock of
each of the Subsidiaries is owned free and clear of all liens, encumbrances and
security interests, and no options, warrants or other rights to purchase,
agreements or other obligations to issue or other rights to convert any
obligations into any shares of capital stock or of ownership interests in the
Subsidiaries are outstanding.
(ii) The authorized shares of the Company's Common Stock have been duly
authorized; the outstanding shares of its Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable; all of the Shares
conform in all material respects to the description thereof contained in, or
incorporated by reference in, the Prospectus; and no preemptive rights of
stockholders exist with respect to any of the Shares.
(iii) Such counsel knows of no material legal proceedings pending or
threatened against the Company or any of the Subsidiaries except as set forth in
the Prospectus.
(iv) The execution and delivery of this Agreement and the consummation
of the transactions herein contemplated do not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, the
Charter or by-laws of the Company, or any agreement or instrument known to such
counsel to which the Company or any of the Subsidiaries is a party or by which
the Company or any of the Subsidiaries may be bound.
(v) The statements under the caption "Investment Considerations --
Government Regulation" in the Prospectus, the statements under the caption
"Business -- Government Regulation" and "Legal Proceedings" in the Company's
Annual Report on Form 10-K for the fiscal year ended December 31, 1994 and the
statements under the caption "Certain Relationships and Related Transactions" in
the Company's Notice of 1995 Annual Meeting of Shareholders and Proxy Statement,
insofar as such statements constitute a summary of documents referred to therein
or matters of law, are accurate summaries and fairly and correctly present the
information called for with respect to such documents and matters.
(d) The Underwriter shall have received on the Closing Date the opinion of
Lathrop & Norquist, L.C., counsel for the Selling Shareholders, dated the
Closing Date or the Option Closing Date, as the case may be, addressed to the
Underwriter to the effect that:
(i) This Agreement has been duly authorized, executed and delivered on
behalf of each of the Selling Shareholders.
(ii) Each Selling Shareholder has full legal right, power and
authority, and any approval required by law (other than
as required by State securities and Blue Sky laws as to which such counsel need
express no opinion), to sell, assign, transfer and deliver the portion of the
Firm Shares or Option Shares, as the case may be, to be sold by such Selling
Shareholder.
(iii) The Custodian Agreement executed and delivered by each Selling
Shareholder is a valid, irrevocable instrument legally sufficient for the
purposes intended.
(iv) The Underwriter (assuming that it is a bona fide purchaser within
the meaning of the Uniform Commercial Code) has acquired good and marketable
title to the Firm Shares or Option Shares, as the case may be being sold by each
Selling Shareholder on the Closing Date or Option Closing Date, free and clear
of all claims, liens, encumbrances and security interests whatsoever.
In rendering such opinion, Lathrop & Norquist, L.C. may rely as to matters
governed by the laws of states other than Missouri or Federal laws on local
counsel in such jurisdictions, provided that in each case Lathrop & Norquist,
L.C. shall state that they believe that they and the Underwriter are justified
in relying on such other counsel.
(e) The Underwriter shall have received from Piper & Marbury llp, its
counsel, an opinion dated the Closing Date or the Option Closing Date, as the
case may be, substantially to the effect specified in subparagraphs (ii) and (v)
of Paragraph (b), subparagraph (ii) of Paragraph (c), and subparagraph (i) of
Paragraph (d) of this Section 6, and that the Company is a validly organized and
existing corporation under the laws of the State of Missouri. In rendering such
opinion Piper & Marbury llp may rely as to all matters governed other than by
the laws of the State of Maryland or Federal laws on the opinions of counsel
referred to in paragraphs (b), (c) and (d) of this Section 6. In addition to the
matters set forth above, such opinion shall also include a statement to the
effect that nothing has come to the attention of such counsel which leads them
to believe that the Registration Statement, as of the time it became effective
under the Act, and the Prospectus or any amendment or supplement thereto, on the
date it was filed pursuant to Rule 424(b) or any of the documents incorporated
by reference therein, as of the date of effectiveness of the Registration
Statement or, in the case of documents incorporated by reference in the
Prospectus after the date of effectiveness of the Registration Statement, as
of the respective dates when such documents were filed with the Commission and
the Registration Statement and the Prospectus, or any amendment or supplement
thereto, as of the Closing Date or the Option Closing Date, as the case may be,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading (except that such counsel need express no view as to financial
statements, schedules and other financial or statistical information included or
incorporated by reference therein). With respect to such statement, Piper &
Marbury llp may state that their belief is based upon the procedures set forth
therein, but is without independent check and verification.
(f) The Underwriter shall have received at or prior to the Closing Date
from Piper & Marbury llp a memorandum or summary, in form and substance
satisfactory to the Underwriter, with respect to the qualification for offering
and sale by the Underwriter of the Shares under the State securities or Blue Sky
laws of such jurisdictions as the Underwriter may reasonably have designated to
the Company.
(g) The Underwriter shall have received on the Closing Date or the Option
Closing Date, as the case may be, a signed letter from Arthur Andersen llp,
dated the Closing Date or the Option Closing Date, as the case may be, which
shall confirm, on the basis of a review in accordance with the procedures set
forth in the letter signed by such firm and dated and delivered to the
Underwriter on the date hereof that nothing has come to their attention during
the period from the date five days prior to the date hereof, to a date not more
than five days prior to the Closing Date or the Option Closing Date, as the case
may be, which would require any change in their letter dated the date hereof if
it were required to be dated and delivered on the Closing Date or the Option
Closing Date, as the case may be. All such letters shall be in form and
substance satisfactory to the Underwriter.
(h) The Underwriter shall have received on the Closing Date or the Option
Closing Date, as the case may be, a certificate or certificates of the Chairman
of the Board, President and Chief Executive Officer and the Executive Vice
President, Chief Financial Officer and Treasurer of the Company to the effect
that, as of the Closing Date or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(i) The Registration Statement has become effective
under the Act and no stop order suspending the effectiveness of the Registration
Statement has been issued, and no proceedings for such purpose have been taken
or are, to his knowledge, contemplated by the Commission.
(ii) He does not know of any litigation instituted or threatened
against the Company of a character required to be disclosed in the Registration
Statement which is not so disclosed; he does not know of any material contract
required to be filed as an exhibit to the Registration Statement which is not so
filed; and the representations and warranties of the Company contained in
Section 1 hereof are true and correct as of the Closing Date or the Option
Closing Date, as the case may be.
(iii) He has carefully examined the Registration Statement and the
Prospectus and, in his opinion, as of the effective date of the Registration
Statement, the statements contained in the Registration Statement, including any
document incorporated by reference therein, were true and correct in all
material respects, and such Registration Statement and Prospectus or any
document incorporated by reference therein did not omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein not misleading and, in his opinion, since the effective date of the
Registration Statement, no event has occurred which should have been set forth
in a supplement to or an amendment of the Prospectus which has not been so set
forth in such supplement or amendment.
(i) The Company and the Selling Shareholders shall have furnished to the
Underwriter such further certificates and documents confirming the
representations and warranties contained herein and related matters as the
Underwriter may reasonably have requested.
(j) The Firm Shares and the Option Shares, if any, have been approved for
listing on the Nasdaq Stock Market.
The opinions and certificates mentioned in this Agreement shall be deemed to
be in compliance with the provisions hereof only if they are in all material
respects satisfactory to the Underwriter and to Piper & Marbury llp, its
counsel.
If any of the conditions hereinabove provided for in this Section 6 shall
not have been fulfilled when and as required by
this Agreement to be fulfilled, the obligations of the Underwriter hereunder may
be terminated by the Underwriter by notifying the Company and the Selling
Shareholders of such termination in writing or by telegram at or prior to the
Closing Date or the Option Closing Date, as the case may be.
In such event, the Company, the Selling Shareholders and the Underwriter
shall not be under any obligation to each other (except to the extent provided
in Sections 5 and 8 hereof).
7. Conditions of the Obligations of the Selling Shareholders. The
obligations of the Selling Shareholders to sell and deliver the portion of the
Shares required to be delivered as and when specified in this Agreement are
subject to the conditions that at the Closing Date or the Option Closing Date,
as the case may be, (i) no stop order suspending the effectiveness of the
Registration Statement shall have been issued and in effect or proceedings
therefor initiated or threatened, and (ii) the Underwriter shall have tendered
payment for the Firm Shares or the Option Shares, as the case may be.
8. Indemnification.
(a) The Company and the Selling Shareholders, jointly and severally, agree
to indemnify and hold harmless the Underwriter and each person, if any, who
controls the Underwriter within the meaning of the Act against any losses,
claims, damages or liabilities to which the Underwriter or such controlling
person may become subject under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in respect thereof)
arise out of or are based upon (i) any untrue statement or alleged untrue
statement of any material fact contained or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Prospectus or any
amendment or supplement thereto, or (ii) the omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, and will reimburse the Underwriter and
each such controlling person for any legal or other expenses reasonably incurred
by the Underwriter or such controlling person in connection with investigating
or defending any such loss, claim, damage, liability, action or proceeding;
provided, however, that the Company and the Selling Shareholders will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement, or omission or alleged omission made or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus, or such amendment or supplement, in reliance upon
and in conformity with written information furnished to the Company by or
through the Underwriter specifically for use in the preparation thereof. In no
event, however, shall the liability of any Selling Shareholder for
indemnification under this Section 8(a) exceed the lesser of (i) that proportion
of the total of such losses, claims, damages or liabilities indemnified against
equal to the proportion of the total Firm Shares sold hereunder which is being
sold by such Selling Shareholder, or (ii) the proceeds received by such Selling
Shareholder from the Underwriter in the offering. The foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement, omission or alleged omission made in a Preliminary Prospectus,
but eliminated in the Prospectus, such indemnity agreement shall not inure to
the benefit of the Underwriter from whom the person asserting any loss,
liability, claim or damage purchased the shares (or to the benefit of any person
who controls the Underwriter) if a copy of the Prospectus was not furnished to
such person at or prior to the time required by the Act to be so furnished. This
indemnity agreement will be in addition to any liability which the Company or
the Selling Shareholders may otherwise have.
(b) The Underwriter will indemnify and hold harmless the Company, each of
its directors, each of its officers who have signed the Registration Statement,
the Selling Shareholders, and each person, if any, who controls the Company or
the Selling Shareholders within the meaning of the Act, against any losses,
claims, damages or liabilities to which the Company or any such director,
officer, Selling Shareholder or controlling person may become subject under the
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained or
incorporated by reference in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement thereto, or arise out
of or are based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances under which they were
made; and will reimburse any legal or other expenses reasonably incurred by the
Company or any such director, officer, Selling Shareholder or controlling person
in connection with investigating or defending any such loss, claim, damage,
liability, action or proceeding; provided,
however, that the Underwriter will be liable in each case to the extent, but
only to the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission has been made or incorporated by reference in the
Registration Statement, any Preliminary Prospectus, the Prospectus or such
amendment or supplement, in reliance upon and in conformity with written
information furnished to the Company by or through the Underwriter specifically
for use in the preparation thereof. This indemnity agreement will be in addition
to any liability which the Underwriter may otherwise have.
(c) In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to this Section 8, such person (the "indemnified party") shall
promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing. No indemnification provided for in Section
8(a) or (b) shall be available to any party who shall fail to give notice as
provided in this Section 8(c) if the party to whom notice was not given was
unaware of the proceeding to which such notice would have related and was
prejudiced by the failure to give such notice, but the failure to give such
notice shall not relieve the indemnifying party or parties from any liability
which it or they may have to the indemnified party for contribution or otherwise
than on account of the provisions of Section 8(a) or (b). In case any such
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party
shall be entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume the
defense thereof, with counsel satisfactory to such indemnified party and shall
pay as incurred the fees and disbursements of such counsel related to such
proceeding. In any such proceeding, any indemnified party shall have the right
to retain its own counsel at its own expense. Notwithstanding the foregoing, the
indemnifying party shall pay as incurred the fees and expenses of the counsel
retained by the indemnified party in the event (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named parties to any such proceeding (including any
impleaded parties) include both the indemnifying party and the indemnified party
and representation of both parties by the same counsel would be inappropriate
due to actual or potential differing interests between them. It is understood
that the indemnifying party shall not, in connection with any proceeding or
related proceedings in the same jurisdiction, be
liable for the reasonable fees and expenses of more than one separate firm for
all such indemnified parties. Such firm shall be designated in writing by you in
the case of parties indemnified pursuant to Section 8(a) and by the Company and
the Selling Shareholders in the case of parties indemnified pursuant to Section
8(b). The indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees
to indemnify the indemnified party from and against any loss or liability by
reason of such settlement or judgment.
(d) If the indemnification provided for in this Section 8 is unavailable to
or insufficient to hold harmless an indemnified party under Section 8(a) or (b)
above in respect of any losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof) in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Selling Shareholders on
the one hand and the Underwriter on the other from the offering of the Shares.
If, however, the allocation provided by the immediately preceding sentence is
not permitted by applicable law or if the indemnified party failed to give the
notice required under Section 8(c) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and the Selling Shareholders on the one hand
and the Underwriter on the other in connection with the statements or omissions
which resulted in such losses, claims, damages or liabilities (or actions or
proceedings in respect thereof), as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Selling
Shareholders on the one hand and the Underwriter on the other shall be deemed to
be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the Selling Shareholders bear to
the total underwriting discounts and commissions received by the Underwriter, in
each case as set forth in the table on the cover page of the Prospectus. The
relative fault shall be determined by reference to, among other things, whether
the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Company or
the Selling Shareholders on the one hand or the Underwriter on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company, the Selling Shareholders and the Underwriter agree that it
would not be just and equitable if contributions pursuant to this Section 8(d)
were determined by pro rata allocation or by any other method of allocation
which does not take account of the equitable considerations referred to above in
this Section 8(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions or proceedings
in respect thereof) referred to above in this Section 8(d) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), (i) the Underwriter shall
not be required to contribute any amount in excess of the underwriting discounts
and commissions applicable to the Shares purchased by the Underwriter, (ii) no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation, and (iii) no Selling Shareholder
shall be required to contribute any amount in excess of the lesser of (A) that
proportion of the total of such losses, claims, damages or liabilities
indemnified or contributed against equal to the proportion of the total Firm
Shares sold hereunder which is being sold by such Selling Shareholder, or (B)
the proceeds received by such Selling Shareholder from the Underwriter in the
offering.
(e) In any proceeding relating to the Registration Statement, any
Preliminary Prospectus, the Prospectus or any supplement or amendment thereto,
each party against whom contribution may be sought under this Section 8 hereby
consents to the jurisdiction of any court having jurisdiction over any other
contributing party, agrees that process issuing from such court may be served
upon him or it by any other contributing party and consents to the service of
such process and agrees that any other contributing party may join him or it as
an additional defendant in any such proceeding in which such other contributing
party is a party.
9. Notices. All communications hereunder shall be in writing and,
except as otherwise provided herein, will be mailed, delivered or telegraphed
and confirmed as follows: if to the
Underwriter, to Alex. Brown & Sons Incorporated, 135 East Baltimore Street,
Baltimore, Maryland 21202, Attention: David G. Bannister, Managing Director; if
to the Company, to Mark VII, Inc., 10100 N.W. Executive Hills Boulevard, Suite
200, Kansas City, Missouri 64153, Attention: J. Michael Head, Executive Vice
President, Chief Financial Officer and Treasurer; if to the Selling
Shareholders, to Roger M. Crouch, 3220 Lands End Lane, Port Townsend, Washington
98368.
10. Termination. This Agreement may be terminated by you by notice to the
Company and to the Selling Shareholders as follows:
(a) at any time prior to the earlier of (i) the time the Shares are
released by you for sale, or (ii) 11:30 A.M. on the first business day following
the date of this Agreement;
(b) at any time prior to the Closing Date if any of the following has
occurred: (i) since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any materially adverse change or any
development involving a prospective materially adverse change in or affecting
the condition, financial or otherwise, of the Company and its Subsidiaries taken
as a whole or the earnings, business affairs, management or business prospects
of the Company and its Subsidiaries taken as a whole, whether or not arising in
the ordinary course of business, (ii) any outbreak of hostilities or other
national or international calamity or crisis or change in economic or political
conditions if the effect of such outbreak, calamity, crisis or change on the
financial markets of the United States would, in your reasonable judgment, make
the offering or delivery of the Shares impracticable, (iii) suspension of
trading in securities on the New York Stock Exchange or the American Stock
Exchange or limitation on prices (other than limitations on hours or numbers of
days of trading) for securities on either such Exchange, (iv) the enactment,
publication, decree or other promulgation of any federal or state statute,
regulation, rule or order of any court or other governmental authority which in
your reasonable opinion materially and adversely affects or will materially or
adversely affect the business or operations of the Company, (v) declaration of a
banking moratorium by either federal or New York State authorities, or (vi) the
taking of any action by any federal, state or local government or agency in
respect of its monetary or fiscal affairs which in your reasonable opinion has a
materially adverse effect on the securities markets in the United States; or
(c) as provided in Section 6 of this Agreement.
This Agreement also may be terminated by you, by notice to the Company, as to
any obligation of the Underwriter to purchase the Option Shares, upon the
occurrence at any time prior to the Option Closing Date of any of the events
described in subparagraph (b) above or as provided in Section 6 of this
Agreement.
11. Successors. This Agreement has been and is made solely for the
benefit of the Underwriter, the Company and the Selling Shareholders and their
respective successors, executors, administrators, heirs and assigns, and the
officers, directors and controlling persons referred to herein, and no other
person will have any right or obligation hereunder. The term "successors" shall
not include any purchaser of the Shares merely because of such purchase.
12. Miscellaneous. The reimbursement, indemnification and contribution
agreements contained in this Agreement and the representations, warranties and
covenants in this Agreement shall remain in full force and effect regardless of
(a) any termination of this Agreement, (b) any investigation made by or on
behalf of any Underwriter or controlling person thereof, or by or on behalf of
the Company or its directors or officers and (c) delivery of and payment for the
Shares under this Agreement.
This Agreement may be executed in two or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument.
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Maryland.
If the foregoing letter is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicates hereof,
whereupon it will become a binding agreement among the Company, the Selling
Shareholders and the Underwriter in accordance with its terms.
Very truly yours,
Mark VII, Inc.
By:________________________________________
J. Michael Head
Executive Vice President, Chief
Financial Officer and Treasurer
Selling Shareholders
By:________________________________________
Roger M. Crouch
Attorney-in-Fact
The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
Alex. Brown & Sons Incorporated
By:___________________________________________
Authorized Officer
SCHEDULE I
Schedule of Selling Shareholders
Number of Firm Shares
Selling Shareholder to be Sold
Roger M. Crouch 875,336
The Sugar Lakes Foundation 118,182
The Catherine Fenner Crouch
Charitable Remainder Unitrust I 90,909
Rosalie C. Sisson 68,858
Rosalie C. Sisson, as custodian for
Alexandra Catherine Sisson 909
---------
Total 1,154,194
SCHEDULE II
Schedule of Option Shares
Maximum Number Percentage of
of Option Shares Total Number of
Name of Seller to be Sold Option Shares
Roger M. Crouch 87,533 75.83%
The Sugar Lakes Foundation 11,818 10.24%
The Catherine Fenner Crouch
Charitable Remainder Unitrust I 9,091 7.88%
Rosalie C. Sisson 6,886 5.97%
Rosalie C. Sisson, as custodian for
Alexandra Catherine Sisson 91 0.08%
------- ------
Total 115,419 100.0%
EXHIBIT A
List of Subsidiaries
Jurisdiction of
Name of Subsidiary Incorporation
Mark VII Transportation Company, Inc. Delaware
Mark VII Trucking, Inc. Delaware
Apollo Express, Inc. Kansas
Neptune Trucking, Inc. Kansas
Jupiter Transportation, Inc. Kansas
Taurus Trucking, Inc. Kansas
Orion Express, Inc. Kansas
Capricorn Transportation, Inc. Kansas
MNX Carriers, Inc. Delaware
Missouri-Nebraska Express, Inc. Iowa
MNX Transport, Inc. Missouri
MNX Trucking, Inc. Missouri
EXHIBIT B
Liens and Encumbrances on Capital Stock of Subsidiaries;
Options, Warrants or Other Rights to Purchase, Agreements or
Other Obligations to Issue or Other Rights to Convert Any
Obligations into Shares of Capital Stock or Ownership Interests
in the Subsidiaries