<PAGE> 1
[ING BARINGS LETTERHEAD]
June 20, 2000
PRIVATE AND CONFIDENTIAL
Crowley Maritime Corporation
155 Grand Avenue
Oakland, CA 94612
Attention: Mr. Richard Oster
Senior Vice President & Chief Financial Officer
Gentlemen:
In connection with your consideration of a possible transaction with
Marine Transport Corporation ("MTC" or the "Company"), you are being furnished
with certain information by the Company or by its representatives or agents in
connection with such potential transaction. In addition, you are being
furnished with a confidential information memorandum which has been prepared by
the Company and delivered to a limited number of persons (the "Information
Memorandum").
As a condition of your being furnished with the Information Memorandum, you
agree to treat any information concerning the Company which is furnished to you
by or on behalf of the Company, whether furnished before or after the date of
this letter and regardless of the manner in which it is furnished, together with
analyses, compilations, forecasts, studies or other documents or records
prepared by you or any of your directors, officers, employees, agents or
representatives (including, without limitation, attorneys, accountants, experts,
consultants, bankers, financial advisors, persons contemplating providing
capital or financing for any transactions and any representatives of such
representatives) (collectively, "Representatives")) to the extent that such
analyses, compilations, forecasts, studies, documents or records contain or
otherwise reflect or are generated, in whole or in part, from such information
(hereinafter collectively referred to as the "Evaluation Material"), in
accordance with the provisions of this letter agreement, and to take or abstain
from taking certain other actions hereinafter set forth. The term "Evaluation
Material" does not include information which (i) was or becomes generally
available to the public other than as a result of a disclosure by you or your
Representatives, (ii) was or becomes available to you on a non-confidential
basis from a source other than the Company or its advisors provided that such
source is not known to you, after due inquiry, to be bound by a confidentiality
agreement with the Company, or otherwise prohibited from transmitting the
information to you by a contractual, legal or fiduciary obligation or (iii) was
within your possession prior to its being furnished to you by or on behalf of
the Company,
<PAGE> 2
ING BARINGS
Crowley Maritime Corporation
06/20/00
provided that the source of such information was not bound by a confidentiality
agreement with the Company or otherwise prohibited from transmitting the
information to you by a contractual, legal or fiduciary obligation.
You hereby agree that the Evaluation Material will be used solely for the
purpose of evaluating a possible transaction between the Company and you, and
that the Evaluation Material will be kept confidential by you and your
Representatives; provided, however, that (a) any of the Evaluation Material may
be disclosed to your Representatives who need to know such Evaluation Material
for the purpose of evaluating any such possible transaction between the
Company and you (it being understood that such Representatives shall have been
advised of this agreement and shall have agreed to be bound by the provisions
hereof), and (b) any disclosure of such information may be made to which the
Company consents in writing. In any event, you shall be responsible for any
breach of this agreement by any of your Representatives and you agree, at your
sole expense, to take all reasonable measures (including, but not limited to,
court proceedings) to restrain your Representatives from prohibited or
unauthorized disclosure or use of the Evaluation Material. You further agree
that the Evaluation Material which is in written form shall not be copied or
reproduced at any time without the prior written consent of the Company.
In addition, without the prior written consent of the Company, you will
not, and will direct your Representatives not to, disclose to any person
(i) that the Evaluation Material exists or has been made available to you or
your Representatives, (ii) that you are considering a transaction with the
Company or that discussions or negotiations are taking or have taken place
concerning a possible transaction between the Company and you or (iii) any of
the terms, conditions or other facts with respect to any such possible
transaction, including, without limitation, the status thereof. The term
"person" as used in this letter agreement shall be broadly interpreted to
include, without limitation, the media and any individual, corporation, estate,
partnership, joint venture, limited liability company, association, joint stock
company, trust (including any beneficiary hereof), unincorporated organization
or other entity.
In the event that you or any of your Representatives are requested or
required (by deposition, interrogatories, requests for information or
documents in legal proceedings, subpoena, civil investigative demand or other
similar process) to disclose any of the Evaluation Material, you shall provide
the Company with prompt written notice of any such request or requirement so
that the Company may seek a protective order or other appropriate remedy
and/or, in the Company's sole discretion, waive compliance with the terms of
this letter agreement. If, in the absence of a protective order or other remedy
or the receipt of a waiver by the Company, you or any of your Representatives
are nonetheless, in the written opinion of your counsel, legally compelled to
disclose Evaluation Material to any tribunal or else stand liable for contempt
or suffer other censure or penalty, you or your Representatives may, without
liability hereunder, disclose to such tribunal only that portion of the
Evaluation Material which such counsel advises you is legally required to be
disclosed, provided that you exercise your best efforts to preserve the
confidentiality of the Evaluation Material, including, without limitation, by
cooperating with the
2
<PAGE> 3
ING BARINGS
Crowley Maritime Corporation
06/20/00
Company to obtain an appropriate protective order or other reliable assurance
that confidential treatment will be accorded the Evaluation Material by such
tribunal.
Until the earliest of (i) the execution by you of a definitive agreement
regarding the acquisition of the Company, (ii) an acquisition of the Company by
a third party; or (iii) three years from the date of this letter agreement, you
agree not to initiate or maintain contact (except for those contacts made in
the ordinary course of business) with any officer, director or employee of the
Company regarding the Company's business, operations, prospects or finances,
except with the express written permission of the Company. You agree not to
solicit for employment any of the current employees of the Company so long as
they are employed by the Company during the period in which there are
discussions conducted pursuant hereto and for a period of two years thereafter,
without the prior written consent of the Company. It is understood that ING
Barings LLC ("ING Barings"), in its capacity as investment banker to the
Company, will arrange for appropriate contacts for due diligence purposes. All
(i) communications regarding this transaction, (ii) requests for additional
information, (iii) requests for facility tours or management meetings, and (iv)
discussions or questions regarding procedures, will be submitted or directed to
ING Barings and not to the Company.
You understand and acknowledge that any and all information contained in
the Evaluation Material is being provided without any representation or
warranty, express or implied, as to the accuracy or completeness of the
Evaluation Material, on the part of the Company or ING Barings or any of their
respective representatives. You agree that none of the Company, ING Barings or
any of their respective representatives shall have any liability to you or any
of your Representatives or any other party resulting from the use of or
reliance on the Evaluation Materials by you or your Representatives or for any
errors therein or omissions therefrom. It is understood that the scope of any
representations and warranties to be given by the Company will be negotiated
along with other terms and conditions in arriving at a mutually acceptable form
of definitive agreement should discussions between you and the Company progress
to such a point.
In the event that you do not proceed with the transaction which is the
subject of this letter agreement within a reasonable time or at the Company's
request, you shall promptly return to ING Barings all written material
containing or reflecting any information contained in the Evaluation Material
(whether prepared by ING Barings, the Company or otherwise) and will not retain
any copies, extracts or other reproductions in whole or in part of such written
material. All documents, memoranda, notes and other writing whatsoever prepared
by you or your Representatives based on the information contained in the
Evaluation Material shall be destroyed. Any oral Evaluation Material will
continue to be subject to the terms of this letter agreement.
In consideration of the Evaluation Material being furnished to you, you
hereby further agree that, without the prior written consent of the Company or
the Board of Directors of the Company, for a period of two years from the date
hereof, neither you nor any of your affiliates (as such term is defined in Rule
12b-2 of the Securities Exchange Act of 1934, as amended (the
3
<PAGE> 4
ING BARINGS
Crowley Maritime Corporation
06/20/00
"Exchange Act")), acting alone or as part of a group, will in any manner (i)
directly or indirectly acquire, attempt to acquire, offer to acquire or agree
to acquire, directly or indirectly, by purchase or otherwise, any securities of
the Company or any of its subsidiaries, whether such agreement or proposal is
with the Company or any of its subsidiaries or with a third party, (ii) propose
to enter into, directly or indirectly, any merger or business combination
involving the Company or any of its subsidiaries or to purchase, directly or
indirectly, a material portion of the assets of the Company or any of its
subsidiaries, (iii) make, or in any way participate, directly or indirectly, in
any "solicitation" of "proxies" (as such terms are defined under Regulation 14A
of the Exchange Act to vote, or seek to advise or influence any person with
respect to the voting of any voting securities of the Company or any of its
subsidiaries, (iv) make any public announcement with respect to a proposal for,
or offer of (with or without conditions) any extraordinary transaction
involving the Company or its securities or assets, (v) otherwise act, alone or
in concert with others, to seek to control or influence the management, the
Board of Directors or policies of the Company or any of its subsidiaries, (vi)
disclose any intention, plan or arrangement inconsistent with any of the
foregoing, (vii) form, join or in any way participate in a "group" (within the
meaning of Section 13(d) of the Exchange Act and the rules and regulations
thereunder) with respect to any voting securities of the Company or any of its
subsidiaries or (viii) advise, assist or encourage any other persons in
connection with any of the foregoing. You also agree during such period not to
(a) request the Company or ING Barings, directly or indirectly, to amend or
waive any provision of this paragraph (including this sentence) or (b) take any
action that you believe might require the Company to make a public announcement
regarding the possibility of any acquisition, business combination or merger.
You are aware, and you will advise your Representatives who are informed
of the matters that are the subject of this letter agreement, of the
restrictions imposed by the United States securities laws on the purchase or
sale of securities by any person who has received material, non-public
information from the issuer of such securities and on the communication of such
information to any other person when it is reasonably foreseeable that such
other person is likely to purchase or sell such securities in reliance upon
such information.
You agree that unless and until a definitive agreement regarding a
transaction between the Company and you has been executed, neither the Company
nor you will be under any legal obligation of any kind whatsoever with respect
to such a transaction by virtue of this letter agreement or any other written
or oral expression with respect to such transaction, except, in the case of
this letter agreement, for the matters specifically agreed to herein. You
further acknowledge and agree that (a) the Company and its representatives are
free to conduct the process leading up to any transaction as they, in their
sole discretion, determine (including, without limitation, by negotiating with
any prospective parties and entering into a preliminary agreement or definitive
agreement without prior notice to you or any other person), (b) the Company
reserves the right, in its sole discretion, to change the procedures relating
to its consideration of a transaction at any time without prior notice to you
or any other person, to reject any and all proposals made by you or any of your
Representatives with regard to any transaction between the Company and you, and
to terminate discussions and negotiations with
4
<PAGE> 5
ING BARINGS
Crowley Maritime Corporation
06/20/00
you at any time and for any reason, and (c) unless and until a written
definitive agreement with you concerning a transactions has been executed,
neither the Company nor any of its representatives will have any liability to
you with respect to any transaction, whether by virtue of this letter
agreement, any other written or oral expression with respect to a transaction
or otherwise.
It is understood and agreed that no failure or delay by the Company in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other
or future exercise of any other right, power or privilege hereunder.
It is understood and agreed that money damages would not be a sufficient
remedy for any breach of this agreement and that the Company shall be entitled
to specific performance and injunctive or other equitable relief as a remedy
for any such breach and you further agree to waive any requirement for the
security or posting of any bond in connection with such remedy. Such remedy
shall not be deemed to be the exclusive remedy for breach of this agreement but
shall be in addition to all other remedies available at law or equity to the
Company.
In the event of litigation relating to this agreement, if a court of
competent jurisdiction determines in a final, nonappealable order that a party
has breached this agreement, then such party shall be liable and pay to the
non-breaching party the reasonable legal fees such non-breaching party has
incurred in connection with such litigation, including any appeal therefrom.
This letter agreement is for the benefit of the Company, ING Barings and
their respective directors, officers, stockholders, owners, members, affiliates
and agents and will be governed by, and construed in accordance with, the laws
of the State of New York, without giving effect to principles of conflicts of
laws.
This letter agreement, which shall expire three years from the date
hereof, except as otherwise explicitly stated above, contains the entire
agreement between you and us concerning the subject matter hereof, and no
modifications of this letter agreement or waiver of the terms and conditions
hereof will be binding upon you or us, unless approved in writing by each of
you and us.
5
<PAGE> 6
ING BARINGS
Crowley Maritime Corporation
06/20/00
If you agree with the foregoing, please sign and return one copy of this
letter which will constitute our agreement with respect to the subject matter of
this letter.
Very truly yours,
MARINE TRANSPORT CORPORATION
By: ING BARINGS LLC
By: /s/ GEOFFREY E. MARTIN
---------------------------------
Geoffrey E. Martin
Vice President
CONFIRMED AND AGREED:
CROWLEY MARITIME CORPORATION
By: /s/ RICHARD M. OSTER
------------------------------------------------
Richard M. Oster
Senior Vice President & Chief Financial Officer
6
