EXHIBIT 99.2
FORM OF TENDER AND VOTING AGREEMENT
AND
IRREVOCABLE PROXY
THIS TENDER AND VOTING AGREEMENT AND IRREVOCABLE PROXY, dated as of July
27, 1999 (this "Agreement"), is entered into by and between MSAS Global
Logistics Inc., a New York corporation ("Parent"), and MSAS Acquisition
Corporation, a Delaware corporation and wholly-owned subsidiary of Parent
("Acquisition"), on the one hand, and __________________ ("Stockholder"), on the
other hand.
RECITALS
A. Concurrently herewith, Parent, Acquisition and Mark VII, Inc., a
Delaware corporation (the "Company"), have entered into an Agreement and Plan of
Merger, of even date herewith (as such agreement may hereafter be amended from
time to time, the "Merger Agreement"), pursuant to which Acquisition will make a
tender offer (the "Offer") for all outstanding shares of common stock, $0.05 par
value, of the Company ("Company Common Stock") at an offer price of $23 per
share, net to the seller in cash (such amount, or any greater amount per share
paid pursuant to the Offer, shall be referred to herein as the "Offer Price")
and, after Acquisition has accepted tendered shares for payment (the date on
which such acceptance occurs, the "Acceptance Date"), the Company and
Acquisition will merge with the Company as the surviving corporation and
wholly-owned subsidiary of Parent (the "Merger"). Initially capitalized and
other terms used but not defined herein shall have the meanings ascribed to them
in the Merger Agreement.
B. Stockholder Beneficially Owns (as defined herein) the number of shares
of Company Common Stock set forth opposite Stockholder's name on Schedule A
hereto (such shares, together with shares of Company Common Stock issuable upon
the exercise of options to purchase shares of Company Common Stock (including
the options set forth on Schedule A (the "Options")), being collectively
referred to herein as the "Shares").
C. As an inducement and a condition to entering into the Merger Agreement,
Parent and Acquisition have requested that Stockholder agree, and Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
1. Provisions Concerning Company Common Stock.
(a) Stockholder hereby agrees with Parent and Acquisition that
Stockholder will, promptly after the date of commencement of the Offer (but in
all events not later than five
business days thereafter), tender to Acquisition all outstanding Shares
Beneficially Owned by Stockholder on such date (the "Tendered Shares").
Stockholder further agrees to tender to Acquisition promptly after Stockholder's
acquisition thereof (but in all events not later than five business days
thereafter) all other shares of Company Common Stock acquired and/or
Beneficially Owned by Stockholder at any time prior to the Acceptance Date or
the date on which the Offer is terminated or expires without Acquisition having
accepted shares for payment. All such subsequently tendered Shares shall
constitute "Tendered Shares" for all purposes of this Agreement. Stockholder
agrees not to withdraw any of the Tendered Shares except following the earliest
of the termination of the Merger Agreement, the termination of the Offer or
expiration of the Offer without Acquisition's having accepted the Tendered
Shares for payment. Stockholder acknowledges and agrees that Acquisition's
obligation to accept for payment and pay for the Tendered Shares is subject to
all the terms and conditions of the Offer.
(b) Stockholder hereby agrees with Parent and Acquisition that,
subject to the receipt of proper notice and in the absence of a preliminary
injunction or other final order by any court or other administrative or judicial
authority barring such action, at any meeting of the Company's stockholders,
however called, or in connection with any written consent of the Company's
stockholders, Stockholder will vote the Shares Beneficially Owned by
Stockholder, whether heretofore owned or hereafter acquired: (i) in favor of
approval of the Merger Agreement and any actions required in furtherance of the
transactions contemplated thereby, including voting such shares in favor of the
election to the Company Board of each person designated by Parent for nomination
thereto pursuant to Section 1.3(a) of the Merger Agreement at any meeting of the
Company's stockholders called for the election of directors; (ii) against any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; and (iii) except as otherwise agreed to in
writing in advance by Parent, against (A) any Third Party Acquisition, (B) any
change in a majority of the individuals who, as of the date hereof, constitute
the Board of Directors of the Company (other than as contemplated by Section 1.3
of the Merger Agreement), (C) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or any
of its subsidiaries and any Third Party, (D) a sale, lease, transfer or
disposition of any assets of the Company's or any of its subsidiaries' business
outside the ordinary course of business, or any assets which are material to its
business whether or not in the ordinary course of business, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
subsidiaries, (E) any change in the present capitalization of the Company or any
amendment of the Company's Certificate of Incorporation or bylaws, (F) any other
material change in the Company's corporate structure or affecting its business,
or (G) any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone or materially adversely affect the
Offer, the Merger or any of the other transactions contemplated by the Merger
Agreement, or any of the transactions contemplated by this Agreement.
Stockholder shall not enter into any agreement or understanding with any person
the effect of which would be inconsistent or violative of the provisions and
agreements contained herein. For purposes of this Agreement, "Beneficially Own"
or "Beneficial Ownership" with respect to any securities shall mean Stockholder
having such ownership, control or power to direct the voting with respect to, or
otherwise enables Stockholder to legally act with respect to, such securities as
contemplated hereby, including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Securities Beneficially Owned by
Stockholder shall include securities Beneficially Owned by all other
persons with whom Stockholder would constitute a "group" as within the meaning
of Section 13(d)(3) of the Exchange Act. Stockholder and Parent acknowledge and
agree that nothing in this Section 1(b) will require or be construed to require
Stockholder to take any action in his capacity as a member of the Company Board.
2. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints Acquisition, which
shall act by and through Ian Smith and Stuart Young (each, a "Proxy Holder"), or
either of them, with full power of substitution, its true and lawful proxy and
attorney-in-fact to vote at any meeting (and any adjournment or postponement
thereof) of the Company's stockholders called for purposes of considering
whether to approve the Merger Agreement, the Merger or any of the other
transactions contemplated by the Merger Agreement, or any Third Party
Acquisition, or to execute a written consent of stockholders in lieu of any such
meeting, all outstanding Shares Beneficially Owned by Stockholder as of the date
of such meeting or written consent in favor of the approval of the Merger
Agreement, the Merger and the other transactions contemplated by the Merger
Agreement, with such modifications to the Merger Agreement as the parties
thereto may make, or against a Third Party Acquisition, as the case may be. Such
proxy will be limited strictly to the power to vote the Shares in the manner set
forth in the preceding sentence and shall not extend to any other matters.
Without limiting the foregoing, in any such vote or other action pursuant to
such proxy, the Proxy Holders shall not have the right (and such proxy shall not
confer the right) to vote to reduce the Offer Price or otherwise modify or amend
the Merger Agreement to reduce the rights or benefits of the Company or any
stockholders of the Company (including Stockholder) under the Offer or the
Merger Agreement or to reduce the rights or obligations of Parent or Acquisition
thereunder.
(b) The proxy and power of attorney granted herein shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder. Stockholder will not grant any
proxy to any person which conflicts with the proxy granted herein, and any
attempt to do so will be void. The power of attorney granted herein is a durable
power of attorney and will survive the death or incapacity of Stockholder.
(c) If Stockholder fails for any reason to vote his, hers or its
Shares in accordance with the requirements of Section 1(b) hereof, then the
Proxy Holder shall have the right to vote the Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with the provisions of this Section 2. The vote of
the Proxy Holder will control in any conflict between his vote of such Shares
and a vote by Stockholder of such Shares.
3. Purchase Option.
(a) Stockholder grants to Parent and Acquisition an irrevocable
option (the "Purchase Option") to purchase for cash, in the manner set forth
below, any or all of the Shares (and any shares of Company Common Stock acquired
by Stockholder after the date hereof) at a price (the "Exercise Price") per
share equal to the Offer Price. In the event of any stock
dividends, stock splits, recapitalizations, combinations, exchanges or shares or
similar transactions, the Offer Price shall be appropriately adjusted.
(b) (1) Subject to the conditions set forth in Section 3(d), the
Purchase Option may be exercised by Parent or Acquisition, in whole or in part,
at any time or from time to time after the occurrence of any Trigger Event (as
defined below). The Company and Stockholder shall notify Parent promptly in
writing of the occurrence of any Trigger Event. The giving of such notice by the
Company or Stockholder is not a condition to the right of Parent or Acquisition
to exercise the Purchase Option. In the event Parent or Acquisition wishes to
exercise the Purchase Option, Parent shall deliver to Stockholder a written
notice (an "Exercise Notice") specifying the total number of Shares it wishes to
purchase from Stockholder. Each closing of a purchase of Shares (a "Closing")
will occur at a place, on a date and at a time designated by Parent or
Acquisition in an Exercise Notice delivered at least two business days prior to
the date of the Closing.
(2) A "Trigger Event" means any one of the following: (i) the
Merger Agreement becomes terminable under circumstances that entitle Parent or
Acquisition to receive the liquidated damages under Section 7.3(a) of the Merger
Agreement or fees and expenses under Section 7.3(b) of the Merger Agreement
(regardless of whether the Merger Agreement is actually terminated and whether
such liquidated damages or fees and expenses are then actually paid); (ii) the
Offer is consummated but, due to the failure of Stockholder to validly tender
and not withdraw all of the then outstanding Beneficially Owned Shares,
Acquisition has not accepted for payment or paid for all of such shares of
Company Common Stock; (iii) a tender or exchange offer for at least 10% of the
shares of Company Common Stock shall have been publicly proposed to be made or
shall have been made by another person; or (iv) it shall have been publicly
disclosed or Parent or Acquisition shall have otherwise learned that (A) any
person or "group" (as defined in Section 13(d)(3) of the Exchange Act) (other
than Parent or Acquisition) shall have acquired or proposed to acquire
beneficial ownership of more than 10% of any class or series of capital stock of
the Company (including the Company Common Stock), through the acquisition of
stock, the formation of a group or otherwise, or shall have been granted any
option, right or warrant, conditional or otherwise, to acquire beneficial
ownership of more than 10% of any class or series of capital stock of the
Company or any of its subsidiaries, or (B) any person or group (other than
Parent and Acquisition) shall have entered into or publicly offered to enter
into a definitive agreement or an agreement in principle with respect to a
merger, consolidation or other business combination with the Company or any of
its subsidiaries.
(3) If requested by Parent and Acquisition in the Exercise
Notice, Stockholder shall exercise all Options (to the extent exercisable) and
other rights (including conversion or exchange rights) Beneficially Owned by
Stockholder and shall sell or, if directed by Parent and Acquisition, tender the
Shares acquired pursuant to such exercise to Parent or Acquisition as provided
in this Agreement.
(c) Termination of Purchase Option. The Purchase Option will terminate
upon the earliest of: (i) the Acceptance Date; (ii) termination of the Merger
Agreement other than upon, during the continuance of or after a Trigger Event;
or (iii) 90 days following any termination of the Merger Agreement upon, during
the continuance of or after a Trigger Event (or if, at the expiration of such 90
day period the Purchase Option cannot be exercised by reason of any
applicable judgment, decree, order, injunction, law or regulation, ten business
days after such impediment to exercise has been removed or has become final and
not subject to appeal). Upon the giving by Parent or Acquisition to Stockholder
of the Exercise Notice and the tender of the aggregate Exercise Price, Parent or
Acquisition, as the case may be, will be deemed to be the holder of record of
the Shares transferable upon such exercise, notwithstanding that the stock
transfer books of the Company are then closed or that certificates representing
such Shares have not been actually delivered to Parent.
(d) Conditions To Closing. The obligation of Stockholder to sell
Stockholder's Shares to Parent or Acquisition hereunder is subject to the
conditions that: (i) all waiting periods, if any, under the HSR Act, applicable
to the sale of the Shares or the acquisition of the Shares by Parent or
Acquisition, as the case may be, hereunder have expired or have been terminated;
(ii) all consents, approvals, orders or authorizations of, or registrations,
declarations or filings with, any court, administrative agency or other
Governmental Entity, if any, required in connection with sale of the Shares or
the acquisition of the Shares by Parent or Acquisition hereunder have been
obtained or made; and (iii) no preliminary or permanent injunction or other
order by any court of competent jurisdiction prohibiting or otherwise
restraining such sale or acquisition is in effect.
(e) Closing. At any Closing with respect to Shares Beneficially Owned by
Stockholder, (i) Stockholder will deliver to Parent, Acquisition or their
respective designee a certificate or certificates in definitive form
representing the number of the Shares designated by Parent or Acquisition, as
the case may be, in its Exercise Notice, such certificate to be registered in
the name of Parent, Acquisition or their respective designee and (ii) Parent or
Acquisition, as the case may be, will deliver to Stockholder the aggregate
Exercise Price for the Shares so designated and being purchased by wire transfer
of immediately available funds.
(f) Registration Rights. (1) Following termination of the Merger
Agreement, Parent or Acquisition may in its sole discretion (but shall not be
required) by written notice (the "Registration Notice") to the Company request
the Company to register under the Securities Act all or any part of the shares
of Company Common Stock acquired under the Purchase Option (the "Registrable
Securities").
(2) The Company shall use commercially reasonable efforts to
effect, as promptly as practicable, the registration under the Securities Act of
the Registrable Securities; provided, however, that (i) Parent and Acquisition
will be entitled to no more than one effective registration statement hereunder
and (ii) the Company will not be required to file any such registration
statement during any period of time (not to exceed 40 days after such request in
the case of clause (A) below or 90 days in the case of clauses (B) and (C)
below) when (A) the Company is in possession of material non-public information
that it reasonably believes would be detrimental to be disclosed at such time
and that such information would have to be disclosed if a registration statement
were filed at that time, (B) the Company is required under the Securities Act to
include audited financial statements for any period in such registration
statement and such financial statements are not yet available for inclusion in
such registration statement or (C) the Company determines, in its reasonable
judgment, that such registration would interfere with any proposed financing,
acquisition or other material transaction involving the Company or any of its
affiliates. The Company shall use its reasonable best efforts to cause
any Registrable Securities registered pursuant to this Section 3(f) to be
qualified for sale under the securities or blue-sky laws of such jurisdictions
as Parent or Acquisition may reasonably request and shall continue such
registration or qualification in effect in such jurisdiction.
(3) The registration rights set forth in this Section 3(f) are
subject to the condition that Parent and Acquisition shall provide the Company
with such information with respect to their Registrable Securities, the plans
for the distribution thereof, and such other information with respect to such
holder as, in the reasonable judgment of counsel for the Company, is necessary
to enable the Company to include in such registration statement all material
facts required to be disclosed with respect to a registration thereunder.
(4) A registration effected under this Section 3(f) will be
effected at the Company's expense, except for underwriting discounts and
commissions and the fees and the expenses of counsel to Parent and Acquisition
(which will be paid by Parent and Acquisition, and the Company shall provide to
the underwriters (in connection with an underwritten offering) such
documentation (including certificates, opinions of counsel and "comfort" letters
from auditors) as are customary in connection with underwritten offerings as
such underwriters may reasonably require. In connection with any such
registration, the parties agree (i) to indemnify each other and the underwriters
in the customary manner, (ii) to enter into an underwriting agreement in form
and substance customary for transactions of such type with the underwriters
participating in such offering and (iii) to take all further actions that will
be reasonably necessary to effect such registration and sale (including, if the
underwriters deem it necessary, participating in road-show presentations).
4. Director Matters Excluded. Parent and Acquisition acknowledge and agree
that no provision of this Agreement shall limit or otherwise restrict
Stockholder with respect to any act or omission that Stockholder may undertake
or authorize in his capacity as a director of the Company, including any vote
that Stockholder may make as a director of the Company with respect to any
matter presented to the Board of Directors of the Company.
5. Other Covenants, Representations and Warranties. Stockholder hereby
represents and warrants to Parent and Acquisition as follows:
(a) Ownership of Shares. Stockholder is the Beneficial Owner of all
the Shares. On the date hereof, the Shares constitute all of the Shares
Beneficially Owned by Stockholder. Stockholder has voting power with respect to
the matters set forth in Section 1(b) hereof with respect to all of the Shares,
with no limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder shall not violate any agreement or any court order to which
Stockholder is a party or is subject including any voting agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
Stockholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except as
expressly contemplated by this Agreement, Stockholder will not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Shares or any interest therein; (ii) grant any proxies or powers
of attorney or deposit any Shares into a voting trust or enter into a voting
agreement with respect to any Shares; or (iii) take any action that would make
any representation or warranty of Stockholder contained herein untrue or
incorrect or have the effect of preventing or disabling Stockholder from
performing any of Stockholder's obligations under this Agreement.
(d) Other Potential Acquirors. Stockholder (i) will immediately
cease any existing discussions or negotiations, if any, with any persons
conducted heretofore with respect to any acquisition of all or any material
portion of the assets of, or any equity interest in, the Company or any of its
subsidiaries, or any business combination with the Company or its subsidiaries,
in his, her or its capacity as such; (ii) from and after the date hereof until
the earlier of the termination of the Merger Agreement in accordance with its
terms and the Effective Time, will not, in such capacity, directly or
indirectly, initiate, solicit or knowingly encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate knowingly, any inquiries or the making of any Third Party
Acquisition; and (iii) shall promptly notify Parent of any proposals for, or
inquiries with respect to, a potential Third Party Acquisition received by
Stockholder or of which Stockholder otherwise has knowledge.
(e) Reliance by Parent and Acquisition. Stockholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance upon Stockholder's execution and delivery of this Agreement.
6. Stop Transfer. Stockholder agrees with, and covenants to, Parent and
Acquisition that Stockholder will not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, unless such transfer is made pursuant to this
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
7. Termination. This Agreement (except as set forth in Section 3) shall
terminate upon the earliest to occur of: (a) the termination of the Merger
Agreement in accordance with its terms; (b) the Acceptance Date; and (c) July
31, 2000. No such termination of this Agreement shall relieve any party hereto
from any liability for any breach of this Agreement prior to termination.
8. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(b) Certain Events. Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
person to which legal or beneficial ownership of any Shares shall pass, whether
by operation of law or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by operation of law or
otherwise without the prior written consent of the other party; provided,
however, that Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct wholly-owned subsidiary of Parent.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) the case of mailing on the third business day
following that on which the piece of mail containing such communication is
posted. All communications hereunder shall be delivered to the respective
parties at the following addresses:
If to Stockholder: at the address set forth on Schedule A
attached hereto
with copies to: Mark VII, Inc.
965 Ridge Lake Boulevard, Suite 100
Memphis, Tennessee 38120
Telecopier: (901) 767-1929
Attention: General Counsel
and
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, New York 10019
Telephone: (212) 259-6720
Facsimile: (212) 259-6333
Attention: Robert M. Smith
If to Parent or Acquisition: c/o Ocean Group plc
Ocean House
The Ring
Bracknell
Berkshire RG12 1AW
England
Telecopier: 011 44 134 44 452222
Attention: Group Commercial Director
with a copy to: Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
Telephone: (212) 351-4000
Telecopier: (212) 351-4035
Attention: Steven R. Finley
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the matter set forth above.
(f) Severability. Whenever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law but if any provision of this Agreement becomes or is declared by
a court of competent jurisdiction to be invalid, illegal or unenforceable in any
respect under any applicable law or rule in any jurisdiction, such invalidity,
illegality or unenforceability shall not affect any other provision or portion
of any provision in such jurisdiction, and this Agreement shall be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement shall cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(h) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in
equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(i) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(j) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement and shall become
effective when one or more of the counterparts have been signed by each of the
parties and delivered to the other parties.
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
duly executed as of the day and year first above written.
MSAS GLOBAL LOGISTICS INC.,
a New York corporation
By:
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Name:
Title:
MSAS ACQUISITION CORPORATION,
a Delaware corporation
By:
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Name:
Title:
STOCKHOLDER:
By:
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Name:
[Signature Page to MSAS/MARK VII Stockholder Tender and
Voting and Irrevocable Proxy]