Common Stock
($0.01 Par Value)
UBS Securities
LLC
as Representative of the Several Underwriters
c/o UBS Securities LLC
299 Park Avenue
New York, New York 10171-0026
Maritrans Inc., a
Delaware corporation (the “ Company ”), proposes
to issue and sell to the underwriters named in
Schedule A annexed hereto (the “
Underwriters ”), for whom you are acting as
representative(s), an aggregate of 3,000,000 shares (the “
Firm Shares ”) of Common Stock, $0.01 par value (the
“ Common Stock ”), of the Company. In addition,
solely for the purpose of covering over-allotments, the Company
proposes to grant to the Underwriters the option to purchase from
the Company up to an additional 450,000 shares of Common Stock (the
“ Additional Shares ”). The Firm Shares and the
Additional Shares are hereinafter collectively sometimes referred
to as the “ Shares .” The Shares are described
in the Prospectus which is referred to below.
The Company hereby
acknowledges that in connection with the proposed offering of the
Shares, it has requested UBS Financial Services Inc. (“
UBS-FinSvc ”) to administer a directed share program
(the “ Directed Share Program ”) under which up
to 150,000 Firm Shares, or 5% of the Firm Shares to be purchased by
the Underwriters (the “ Reserved Shares ”),
shall be reserved for sale by UBS-FinSvc at the initial public
offering price to the Company’s officers, directors and
employees as designated by the Company, (the “ Directed
Share Participants ”) as part of the distribution of the
Shares by the Underwriters, subject to the terms of this Agreement,
the applicable rules, regulations and interpretations of the NASD
and all other applicable laws, rules and regulations. The number of
Shares available for sale to the general public will be reduced to
the extent that Directed Share Participants purchase Reserved
Shares. The Underwriters may offer any Reserved Shares not
purchased by Directed Share Participants to the general public on
the same basis as the other Shares being issued and sold hereunder.
The Company has supplied UBS-FinSvc with names, addresses and
telephone numbers of the individuals which the Company has
designated to be participants in the Directed Share Program. It is
understood that any number of those designated to participate in
the Directed Share Program may decline to do so.
The Company has
prepared and filed, in accordance with the provisions of the
Securities Act of 1933, as amended, and the rules and regulations
thereunder (collectively, the “ Act ”), with the
Securities and Exchange Commission (the “ Commission
”) a registration statement on Form S-3 (File
No. 333-128108) under the Act, as amended by Amendment
No. 1 filed on October 13, 2005 (the “
registration statement ”). Such registration
statement, as so amended, has been declared by the Commission to be
effective under the Act. The Company has filed with the Commission
a Pre-Pricing Prospectus (as defined and referred to below)
pursuant to Rule 424(b) under the Act, describing the
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Shares and the
offering thereof, in such form as has been provided to or discussed
with, and approved by, the Underwriters. The Company will next file
with the Commission pursuant to Rule 424(b) under the Act a final
prospectus supplement to the base prospectus, describing the Shares
and the offering thereof, in such form as has been provided to or
discussed with, and approved, by the Underwriters.
The term “
Registration Statement ” as used in this Agreement
means the registration statement, as amended at the time it became
effective and as supplemented or amended (including all information
deemed to be part of and included in the registration statement
pursuant to Rule 430B under the Act) prior to the execution of
this Agreement, including (i) all financial schedules and
exhibits thereto and (ii) all documents incorporated by
reference or deemed to be incorporated by reference therein. If an
abbreviated registration statement is prepared and filed with the
Commission in accordance with Rule 462(b) under the Act (an “
Abbreviated Registration Statement ”), the term
“ Registration Statement ” includes the
Abbreviated Registration Statement.
The term “
Base Prospectus ” as used in this Agreement means the
base prospectus, dated as of October 14, 2005, included in the
Registration Statement at the time it was declared effective by the
Commission or in the form in which it has been most recently filed
with the Commission on or prior to the date of this Agreement. The
term “ Pre-Pricing Prospectus ” as used in this
Agreement means the preliminary prospectus supplement dated as of
November 22, 2005 together with the Base Prospectus, as may be
amended or supplemented by the Company. The term “
Prospectus Supplement ” as used in this Agreement
means the final prospectus supplement specifically relating to the
Shares in the form that is first filed with the Commission pursuant
to Rule 424 under the Act after the date and time this
Agreement is executed and delivered by the parties hereto. The term
“ Prospectus ” as used in this Agreement means
the Base Prospectus as amended or supplemented by the Company prior
to the date of the filing of the Prospectus Supplement together
with the Prospectus Supplement.
“
Permitted Free Writing Prospectuses ,” as used herein,
means the documents listed on Schedule B attached
hereto and each “road show” (as defined in
Rule 433 under the Act), if any, related to the offering of
the Shares contemplated hereby that is a “written
communication” (as defined in Rule 405 under the Act)
(each such road show, a “Road Show”). “
Disclosure Package ,” as used herein, means the
Pre-Pricing Prospectus and the Permitted Free Writing Prospectuses,
if any, all considered together.
Any reference
herein to the registration statement, the Registration Statement,
the Base Prospectus, the Pre-Pricing Prospectus, any Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 under the Act. Any reference herein to the
terms “ amend ,” “ amendment
” or “ supplement ” with respect to the
Registration Statement, the Base Prospectus, the Pre-Pricing
Prospectus, the Prospectus Supplement or the Prospectus shall be
deemed to refer to and include the filing of any document under the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “ Exchange
Act ”) after the effective date of the Registration
Statement, or the date of such Base Prospectus, such Pre-Pricing
Prospectus or the Prospectus Supplement, as the case may be, deemed
to be incorporated therein by reference (the “
Incorporated Documents ”).
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As used herein,
“business day” shall mean a day on which the New York
Stock Exchange is open for trading. The terms “herein,”
“hereof,” “hereto,”
“hereinafter” and similar terms, as used in this
Agreement, shall in each case refer to this Agreement as a whole
and not to any particular section, paragraph, sentence or other
subdivision of this Agreement. The term “or,” as used
herein, is not exclusive.
The Company and
the Underwriters agree as follows:
1. Sale
and Purchase . Upon the basis of the representations and
warranties and subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to the respective
Underwriters and each of the Underwriters, severally and not
jointly, agrees to purchase from the Company the number of Firm
Shares set forth opposite the name of such Underwriter in
Schedule A attached hereto, subject to adjustment in
accordance with Section 8 hereof, in each case at a net
purchase price of $24.63 per Share (representing the public
offering price of $26.00 per share less underwriting discounts and
commissions of $1.37). The Company is advised by you that the
Underwriters intend (i) to make a public offering of their
respective portions of the Firm Shares as soon after the effective
date of the Registration Statement as in your judgment is advisable
and (ii) initially to offer the Firm Shares upon the terms set
forth in the Prospectus. Subject to the terms set forth in the
Prospectus, you may from time to time increase or decrease the
public offering price after the initial public offering to such
extent as you may determine.
In addition, the
Company hereby grants to the several Underwriters the option to
purchase, and upon the basis of the representations and warranties
and subject to the terms and conditions herein set forth, the
Underwriters shall have the right to purchase, severally and not
jointly, from the Company, ratably in accordance with the number of
Firm Shares to be purchased by each of them, all or a portion of
the Additional Shares as may be necessary to cover over-allotments
made in connection with the offering of the Firm Shares, at the
same purchase price per share to be paid by the Underwriters to the
Company for the Firm Shares (the “ Option” ).
This Option may be exercised by UBS Securities LLC (“
UBS ”) on behalf of the several Underwriters in whole
or in part at any time and from time to time on or before the
thirtieth day following the date of the Prospectus, by written
notice to the Company. Such notice shall set forth the aggregate
number of Additional Shares as to which the Option is being
exercised, and the date and time when the Additional Shares are to
be delivered (such date and time being herein referred to as the
“ additional time of purchase ”);
provided , however , that the additional time of
purchase shall not be earlier than the time of purchase (as defined
below) nor earlier than the second business day after the date on
which the Option shall have been exercised nor later than the tenth
business day after the date on which the Option shall have been
exercised. The number of Additional Shares to be sold to each
Underwriter shall be the number which bears the same proportion to
the aggregate number of Additional Shares being purchased as the
number of Firm Shares set forth opposite the name of such
Underwriter on Schedule A hereto bears to the total
number of Firm Shares (subject, in each case, to such adjustment as
you may determine to eliminate fractional shares), subject to
adjustment in accordance with Section 8 hereof.
2.
Payment and Delivery . Payment of the purchase price for the
Firm Shares shall be made to the Company by Federal Funds wire
transfer, against delivery of the certificates for the Firm Shares
to you through the facilities of The Depository Trust Company
(“ DTC ”) for the respective
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accounts of the
Underwriters. Such payment and delivery shall be made at
10:00 A.M., New York City time, on December 14, 2005
(unless another time shall be agreed to by you and the Company or
unless postponed in accordance with the provisions of
Section 8 hereof). The time at which such payment and delivery
are to be made is hereinafter sometimes called the “ time
of purchase .” Electronic transfer of the Firm Shares
shall be made to you at the time of purchase in such names and in
such denominations as you shall specify.
Payment of the
purchase price for the Additional Shares shall be made at the
additional time of purchase in the same manner and at the same
office as the payment for the Firm Shares. Electronic transfer of
the Additional Shares shall be made to you at the additional time
of purchase in such names and in such denominations as you shall
specify.
Deliveries of the
documents described in Section 6 hereof with respect to the
purchase of the Shares shall be made at the offices of Morgan,
Lewis & Bockius LLP, 1701 Market Street, Philadelphia, PA
19103-2921 at 10:00 A.M., New York City time, on the date of
the closing of the purchase of the Firm Shares or the Additional
Shares, as the case may be.
3.
Representations and Warranties of the Company . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a) The Registration Statement
has been declared effective under the Act; no stop order of the
Commission preventing or suspending the use of the Base Prospectus,
the Pre-Pricing Prospectus, the Prospectus Supplement or the
Prospectus or the effectiveness of the Registration Statement has
been issued and no proceedings for such purpose have been
instituted or, to the best of the Company’s knowledge, are
contemplated by the Commission;
(b) the Registration Statement
complied when it became effective, complies as of the date hereof
and, as amended or supplemented, at the time of purchase and each
additional time of purchase, if any, will comply, in all material
respects, with the requirements of the Act; the conditions to the
use of Form S-3 in connection with the offering and sale of the
Shares as contemplated hereby have been satisfied; the Registration
Statement meets, and the offering and sale of the Shares as
contemplated hereby complies with, the requirements of
Rule 415(a)(1)(x) under the Act; the Registration Statement
did not, as of the time such Registration Statement became
effective, 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; the Pre-Pricing
Prospectus complied, at the time it was filed with the Commission,
and complies as of the date hereof, in all material respects with
the requirements of the Act and the Pre-Pricing Prospectus, at the
time it was filed with the Commission, did not include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading; at
all times during the period beginning with the execution of this
Agreement and ending on the time of purchase, the Disclosure
Package does not and will not include an untrue statement of a
material fact or omit to state a material fact necessary in order
to make the statements therein, in the light of the circumstances
under which they were made, not misleading; the Prospectus will
comply, as of the date that it is filed with the
Commission,
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the date of the
Prospectus Supplement and, as amended or supplemented, at all times
during the period beginning with the execution of this Agreement
and ending on the time of purchase, in all material respects, with
the requirements of the Act (including, without limitation, Section
10(a) of the Act); the Prospectus, as of the date that it is filed
with the Commission, the date of the Prospectus Supplement and, as
amended or supplemented, at the time of purchase and each
additional time of purchase, if any, did not or will not include an
untrue statement of a material fact or omit to state a material
fact necessary in order 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
representation or warranty with respect to any statement contained
in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus in reliance
upon and in conformity with information concerning an Underwriter
and furnished in writing by or on behalf of such Underwriter
through you to the Company expressly for use in the Registration
Statement, such Pre-Pricing Prospectus, the Prospectus or such
Permitted Free Writing Prospectus; each Incorporated Document, at
the time such document was filed with the Commission, complied, in
all material respects, with the requirements of the Exchange Act
and did not include an untrue statement of a material fact or omit
to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were
made, not misleading;
(c) prior to the execution of
this Agreement, the Company has not, directly or indirectly,
offered or sold any Shares by means of any “prospectus”
(within the meaning of the Act) or used any
“prospectus” (within the meaning of the Act) in
connection with the offer or sale of the Shares, in each case other
than the Pre-Pricing Prospectus and the Permitted Free Writing
Prospectuses, if any; the Company has not, directly or indirectly,
prepared, used or referred to any Permitted Free Writing Prospectus
except in compliance with the applicable provisions of
Rules 164 and 433 under the Act; assuming that such Permitted
Free Writing Prospectus is so sent or given after the Registration
Statement was filed with the Commission (and after such Permitted
Free Writing Prospectus was, if required pursuant to Rule 433(d)
under the Act, filed with the Commission), such Permitted Free
Writing Prospectus will be deemed to be a prospectus permitted
under Section 10(b) of the Act for purposes of Section 5(b)(1)
of the Act; the conditions set forth in one or more of subclauses
(i) through (iv), inclusive, of Rule 433(b)(1) under the
Act are satisfied, and the registration statement relating to the
offering of the Shares contemplated hereby, as initially filed with
the Commission, includes a prospectus that, other than by reason of
Rule 433 or Rule 431 under the Act, satisfies the
applicable requirements of Section 10 of the Act; neither the
Company nor the Underwriters are disqualified, by reason of
subsection (f) or (g) of Rule 164 under the Act,
from using, in connection with the offer and sale of the Shares,
“free writing prospectuses” (as defined in
Rule 405 under the Act) pursuant to Rules 164 and 433
under the Act; the Company is not an “ineligible
issuer” (as defined in Rule 405 under the Act) as of the
eligibility determination date set forth in Rule 164(h) under the
Act with respect to the offering of the Shares contemplated by the
Registration Statement;
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(d) to enable the Underwriters
to rely on Rule 2710(b)(7)(C)(i) of the National Association
of Securities Dealers, Inc. (the “ NASD ”), the
registration of the Shares registered with the Commission could
have been affected on Form S-3 under the Act pursuant to the
standards for such Form S-3 in effect prior to October 21,
1992;
(e) as of the date of this
Agreement, the Company has (1) an authorized capitalization as
set forth in the section of the Registration Statement entitled
“Description of capital stock” and (2) an
outstanding capitalization as set forth in the section of the
Pre-Pricing Prospectus entitled “Capitalization” (and
any similar sections or information, if any, contained in any
Permitted Free Writing Prospectus), and, as of the time of purchase
and any additional time of purchase, as the case may be, the
Company shall have (1) an authorized capitalization as set
forth in the section of the Registration Statement entitled
“Description of capital stock” and (2) an
outstanding capitalization as set forth in the section of the
Prospectus entitled “Capitalization” (subject, in each
case, to the issuance of shares of Common Stock upon exercise of
stock options and warrants disclosed as outstanding in the
Registration Statement (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus and the grant of options
and the issuance of shares upon the exercise thereof under existing
stock option plans described in the Registration Statement
(excluding the exhibits thereto), the Pre-Pricing Prospectus and
the Prospectus); all of the issued and outstanding shares of
capital stock, including the Common Stock, of the Company have been
duly authorized and validly issued and are fully paid and
non-assessable, have been issued in compliance with all applicable
securities laws and were not issued in violation of any preemptive
right, resale right, right of first refusal or similar
right;
(f) the Company has been duly
incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware, with full
corporate power and authority to own, lease and operate its
properties and conduct its business as described in the
Registration Statement , the Pre-Pricing Prospectus and the
Prospectus to execute and deliver this Agreement and to issue, sell
and deliver the Shares as contemplated herein;
(g) the Company is duly
qualified to do business as a foreign corporation and is in good
standing in each jurisdiction where the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure to be so qualified and in
good standing would not, individually or in the aggregate, have a
material adverse effect on the business, properties, financial
condition, results of operation or prospects of the Company and the
Subsidiaries (as hereinafter defined) taken as a whole (a “
Material Adverse Effect ”);
(h) the Company has no
subsidiaries (as defined in the Act) other than as set forth on
Exhibit 21.1 to the Company’s Annual Report on Form 10-K
for the year ended December 31, 2004 (collectively, the
“ Subsidiaries ”); the Company owns, directly or
indirectly, all of the issued and outstanding capital stock of, or
partnership interests in, each of the Subsidiaries; other than the
capital stock of or partnership interest in the Subsidiaries, the
Company does not own, directly or indirectly, any shares of stock
or any other equity or long-term debt
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securities of
any corporation or have any equity interest in any firm,
partnership, joint venture, association or other entity; complete
and correct copies of the certificates of incorporation and the
by-laws, or similar governing documents, of the Company and each of
the Subsidiaries and all amendments thereto have been delivered to
you, and except as set forth in the exhibits to the Registration
Statement no changes therein will be made subsequent to the date
hereof and prior to the time of purchase or, if later, the
additional time of purchase; each Subsidiary has been duly formed
and is validly existing as a corporation, limited liability company
or limited partnership, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or organization,
with full power and authority to own, lease and operate its
properties and to conduct its business as described in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus; each Subsidiary is duly qualified to do business as a
foreign corporation, limited liability company or limited
partnership, as the case may be, and is in good standing in each
jurisdiction where the ownership or leasing of its properties or
the conduct of its business requires such qualification, except
where the failure to be so qualified and in good standing would
not, individually or in the aggregate, have a Material Adverse
Effect; all of the outstanding shares of capital stock or other
ownership interests of each of the Subsidiaries have been duly
authorized and validly issued, are fully paid and non-assessable
and are owned, directly or indirectly, by the Company subject to no
security interest, other encumbrance or adverse claims; and no
options, warrants or other rights to purchase, agreements or other
obligations to issue or other rights to convert any obligation into
shares of capital stock or ownership interests in the Subsidiaries
are outstanding;
(i) the Shares have been duly
and validly authorized and, when issued and delivered against
payment therefor as provided herein, will be duly and validly
issued, fully paid and non-assessable and free of statutory and
contractual preemptive rights, resale rights, rights of first
refusal and similar rights;
(j) the authorized capital
stock of the Company, including the Shares, conforms in all
material respects to the description thereof contained in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
and the Permitted Free Writing Prospectuses, if any, and the
certificates for the Shares are in due and proper form and the
holders of the Shares will not be subject to personal liability by
reason of being such holders;
(k) this Agreement has been
duly authorized, executed and delivered by the Company;
(l) neither the Company nor
any of the Subsidiaries is in breach or violation of or in default
under (nor has any event occurred which with notice, lapse of time
or both would result in any breach or violation of, constitute a
default under or give the holder of any indebtedness (or a person
acting on such holder’s behalf) the right to require the
repurchase, redemption or repayment of all or a part of such
indebtedness under) its respective (i) formation or governing
documents or (ii) any material indenture, mortgage, deed of
trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their properties may be
bound or affected, except, solely with
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respect to
clause (ii), such breach, violation or default that would not,
individually or in the aggregate, have a Material Adverse Effect,
and the execution, delivery and performance of this Agreement, the
issuance and sale of the Shares and the consummation of the
transactions contemplated hereby will not conflict with, result in
any breach or violation of or constitute a default under (nor
constitute any event which with notice, lapse of time or both would
result in any breach or violation of or constitute a default under)
(x) the formation of governing documents of the Company or any
of the Subsidiaries, (y) any material indenture, mortgage,
deed of trust, bank loan or credit agreement or other evidence of
indebtedness, or any license, lease, contract or other agreement or
instrument to which the Company or any of the Subsidiaries is a
party or by which any of them or any of their respective properties
may be bound or affected, or (z) any federal, state, local or
foreign law, regulation or rule or any decree, judgment or order
applicable to the Company or any of the Subsidiaries, except,
solely with respect to clause (y), such breach, violation or
default that would not, individually or in the aggregate, have a
Material Adverse Effect;
(m) no approval,
authorization, consent or order of or filing with any federal,
state, local or foreign governmental or regulatory commission,
board, body, authority or agency is required in connection with the
issuance and sale of the Shares or the consummation by the Company
of the transactions contemplated hereby other than registration of
the Shares under the Act, which has been or will be effected, and
any necessary qualification under the securities or blue sky laws
of the various jurisdictions in which the Shares are being offered
by the Underwriters or under the rules and regulations of the NASD
or the New York Stock Exchange;
(n) except as set forth in the
Registration Statement (excluding the exhibits thereto), the
Pre-Pricing Prospectus and the Prospectus, (i) no person has
the right, contractual or otherwise, to cause the Company to issue
or sell to it any shares of Common Stock or shares of any other
capital stock or other equity interests of the Company,
(ii) no person has any preemptive rights, resale rights,
rights of first refusal or other rights to purchase any shares of
Common Stock or shares of any other capital stock or other equity
interests of the Company, and (iii) no person has the right to
act as an underwriter or as a financial advisor to the Company in
connection with the offer and sale of the Shares, in the case of
each of the foregoing clauses (i), (ii) and (iii), whether as
a result of the filing or effectiveness of the Registration
Statement or the sale of the Shares as contemplated thereby or
otherwise; no person has the right, contractual or otherwise, to
cause the Company to register under the Act any shares of Common
Stock or shares of any other capital stock or other equity
interests of the Company, or to include any such shares or
interests in the Registration Statement or the offering
contemplated thereby, whether as a result of the filing or
effectiveness of the Registration Statement or the sale of the
Shares as contemplated thereby or otherwise, except for the
registration rights granted to Stephen A. Van Dyck, the
Company’s former Chief Executive Officer, pursuant to that
certain Confidential Transition and Retirement Agreement and
General Release, made and entered into on February 15, 2005,
which registration rights have been waived;
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(o) each of the Company and
the Subsidiaries has all necessary licenses, authorizations,
consents and approvals and has made all necessary filings required
under any federal, state, local or foreign law, regulation or rule,
and has obtained all necessary authorizations, consents and
approvals from other persons, in order to conduct its respective
business, except for such failures to have, file or obtain that
would not, individually or in the aggregate, have a Material
Adverse Effect; neither the Company nor any of the Subsidiaries is
in violation of, or in default under, or has received notice of any
proceedings relating to revocation or modification of, any such
license, authorization, consent or approval or any federal, state,
local or foreign law, regulation or rule or any decree, order or
judgment applicable to the Company or any of the Subsidiaries,
except where such violation, default, revocation or modification
would not, individually or in the aggregate, have a Material
Adverse Effect;
(p) all legal or governmental
proceedings, affiliate transactions, off-balance sheet
transactions, contracts, licenses, agreements, leases or documents
of a character required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to the
Registration Statement have been so described or filed as
required;
(q) there are no actions,
suits, claims, investigations or proceedings pending or, to the
best of the Company’s knowledge, threatened to which the
Company or any of the Subsidiaries or, to the best of the
Company’s knowledge, any of their respective directors or
officers is or would be a party or of which any of their respective
properties is or would be subject at law or in equity, before or by
any federal, state, local or foreign governmental or regulatory
commission, board, body, authority or agency, except any such
action, suit, claim, investigation or proceeding which would not
result in a judgment, decree or order having, individually or in
the aggregate, a Material Adverse Effect or preventing consummation
of the transactions contemplated hereby;
(r) Ernst & Young LLP,
whose report on the consolidated financial statements of the
Company and the Subsidiaries is filed with the Commission as part
of the Registration Statement, the Pre-Pricing Prospectus and the
Prospectus, are independent public accountants as required by the
Act;
(s) the audited financial
statements included or incorporated by reference in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
or any Permitted Free Writing Prospectus, together with the related
notes and schedules, present fairly the consolidated financial
condition of the Company and the Subsidiaries as of the dates
indicated and the consolidated results of operations and cash flows
of the Company and the Subsidiaries for the periods specified and
have been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved and comply as to form in all material respects with the
applicable accounting requirements of the Act; any pro forma
financial statements or data included or incorporated by reference
in the Registration Statement, the Pre-Pricing Prospectus, the
Prospectus or any Permitted Free Writing Prospectus comply with the
applicable requirements of Regulation S-X of the Act, if any,
and the assumptions used in the preparation of such pro forma
financial statements and
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data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data; the other financial and statistical data set forth in the
Registration Statement, the Pre-Pricing Prospectus, the Prospectus
or any Permitted Free Writing Prospectus are accurately presented
and prepared on a basis consistent with the financial statements
and books and records of the Company; there are no financial
statements (historical or pro forma) that are required to be
included in the Registration Statement, the Pre-Pricing Prospectus,
the Prospectus or any Permitted Free Writing Prospectus that are
not included as required; and the Company and the Subsidiaries do
not have any material liabilities or obligations, direct or
contingent (including any off-balance sheet obligations), not
disclosed in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing
Prospectus; and all disclosures contained in the Registration
Statement, the Pre-Pricing Prospectus, the Prospectus or any
Permitted Free Writing Prospectus regarding “non-GAAP
financial measures” (as such term is defined by the rules and
regulations of the Commission) comply with Regulation G of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (collectively, the “ Exchange
Act ”) and Item 10 of Regulation S-K under the
Act, to the extent applicable;
(t) subsequent to the
respective dates as of which information is given or incorporated
by reference in the Disclosure Package, excluding any amendments or
supplements to the foregoing made after the execution of this
Agreement, except as disclosed in the Disclosure Package, there has
not been (i) any material adverse change, or any development
involving a prospective material adverse change, in the business,
properties, management, financial condition or results of
operations of the Company and the Subsidiaries taken as a whole,
(ii) any transaction which is material to the Company and the
Subsidiaries taken as a whole, (iii) any obligation, direct or
contingent (including any off-balance sheet obligations), incurred
by the Company or the Subsidiaries, which is material to the
Company and the Subsidiaries taken as a whole, (iv) any change
in the capital stock, or any material change in the outstanding
indebtedness, of the Company or the Subsidiaries or (v) any
dividend or distribution of any kind declared, paid or made on the
capital stock of the Company other than as disclosed in the
Pre-Pricing Prospectus;
(u) the Company has obtained
for the benefit of the Underwriters the agreement (a “
Lock-Up Agreement ”), in the form set forth as
Exhibit A hereto, of each of its directors and
executive officers;
(v) the Company is not and,
after giving effect to the offering and sale of the Shares and the
application of the net proceeds thereof as described in the
Prospectus, will not be an “investment company” or an
entity “controlled” by an “investment
company,” as such terms are defined in the Investment Company
Act of 1940, as amended (the “ Investment Company Act
”);
(w) the Company and each of
the Subsidiaries has good and marketable title to all property
(real and personal) described the Registration Statement, the
Pre-Pricing Prospectus,
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the Prospectus
or any Permitted Free Writing Prospectus as being owned by each of
them, free and clear of all liens, claims, security interests or
other encumbrances, except for maritime liens incurred in the
ordinary course of business, liens or mortgages established
pursuant to (i) the Loan and Security Agreement dated as of
June 22, 2004 by and among Maritrans Inc. and Maritrans 196
Co. and Fifth Third Bank, (ii) the Loan and Security Agreement
dated as of June 22, 2004 by and among Maritrans Inc. and
Maritrans Honour Co. and Fifth Third Bank, (iii) the Loan
Agreement dated as of September 30, 2003 among Maritrans,
Inc., Maritrans Freedom Co. and Maritrans 215 Co. and Lombard US
Equipment Finance Corporation, (iv) the Loan and Security
Agreement dated as of September 26, 2003 by and among
Maritrans Inc., Maritrans 250 Co. and Maritrans Intrepid Co. and
Fifth Third Bank, (v) the Loan and Security Agreement dated as of
September 26, 2003 by and among Maritrans Inc. and Maritrans
Navigator Co. and PNC Leasing, LLC, and (vi) the Credit and
Security Agreement dated as of November 20, 2001 among
Maritrans Inc. and the other borrowers signatory hereto and the
lenders signatory thereto and Mellon Bank, N.A. and Fleet National
Bank, as amended by First Amendment to Credit and Security
Agreement entered into on October 7, 2005 by and among
Maritrans Inc., each of the other Borrowers, Citizens Bank of
Pennsylvania and each of the other lenders, and any failure to have
good and marketable title that would not, individually or in the
aggregate, have a Material Adverse Effect; all the property
described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
as being held under lease by the Company or a Subsidiary is held
thereby under valid, subsisting and enforceable leases with only
such exceptions with respect to any particular lease as do not
interfere in any material respect with the conduct of the business
of the Company and the Subsidiaries;
(x) the Company and the
Subsidiaries own, or have obtained valid and enforceable licenses
for, or other rights to use, the inventions, patent applications,
patents, trademarks (both registered and unregistered), tradenames,
copyrights, trade secrets and other proprietary information
described in the Registration Statement, the Pre-Pricing
Prospectus, the Prospectus or any Permitted Free Writing Prospectus
as being owned or licensed by them or which are necessary for the
conduct of their respective businesses, except where the failure to
own, license or have such rights would not, individually or in the
aggregate, have a Material Adverse Effect (collectively, “
Intellectual Property ”); (i) there are no third
parties who have or, to the best of the Company’s knowledge,
will be able to establish rights to any Intellectual Property,
except for the ownership rights of the owners of the Intellectual
Property which is licensed to the Company; (ii) to the best of
the Company’s knowledge, there is no infringement by third
parties of any Intellectual Property; (iii) there is no
pending or, to the best of the Company’s knowledge,
threatened action, suit, proceeding or claim by others challenging
the Company’s rights in or to, or the validity of scope of,
any Intellectual Property, and the Company is unaware of any facts
which could form a reasonable basis for any such claim;
(iv) there is no pending or, to the best of the
Company’s knowledge, threatened action, suit, proceeding or
claim by others that the Company infringes or otherwise violates
any patent, trademark, copyright, trade secret or other proprietary
rights of others, and the Company is unaware of any facts which
could form a reasonable basis for any such claim; (v) there is
no patent or patent application that contains claims that interfere
with the issued or
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pending claims
of any of the Intellectual Property; and (vi) to the best of
the Company’s knowledge, there is no prior art that may
render any patent application owned by the Company of the
Intellectual Property unpatentable that has not been disclosed to
the U.S. Patent and Trademark Office;
(y) neither the Company nor
any of the Subsidiaries is engaged in any unfair labor practice;
except for matters which would not, individually or in the
aggregate, have a Material Adverse Effect, (i) there is
(A) no unfair labor practice complaint pending or, to the best
of the Company’s knowledge, threatened against the Company or
any of the Subsidiaries before the National Labor Relations Board,
and no grievance or arbitration proceeding arising out of or under
collective bargaining agreements is pending or, to the best of the
Company’s knowledge, threatened, (B) no strike, labor
dispute, slowdown or stoppage pending or, to the best of the
Company’s knowledge, threatened against the Company or any of
the Subsidiaries and (C) no union representation dispute
currently existing concerning the employees of the Company or any
of the Subsidiaries, and (ii) to the best of the
Company’s knowledge, (A) no union organizing activities
are currently taking place concerning the employees of the Company
or any of the Subsidiaries and (B) there has been no violation
of any federal, state, local or foreign law relating to
discrimination in the hiring, promotion or pay of employees, any
applicable wage or hour laws or any provision of the Employee
Retirement Income Security Act of 1974 (“ ERISA
”) or the rules and regulations promulgated thereunder
concerning the employees of the Company or any of the
Subsidiaries;
(z) the Company and the
Subsidiaries and their properties, assets and operations are in
compliance with, and hold all permits, authorizations and approvals
required under, Environmental Laws (as defined below), except to
the extent that failure to so comply or to hold such permits,
authorizations or approvals would not, individually or in the
aggregate, have a Material Adverse Effect; there are no past,
present or, to the best of the Company’s knowledge,
reasonably anticipated future events, conditions, circumstances,
activities, practices, actions, omissions or plans that could
reasonably be expected to give rise to any material costs or
liabilities to the Company or the Subsidiaries under, or to
interfere with or prevent compliance by the Company or the
Subsidiaries with, Environmental Laws; except as would not,
individually or in the aggregate, have a Material Adverse Effect,
neither the Company nor any of the Subsidiaries (i) is the
subject of any investigation, (ii) has received any notice or
claim, (iii) is a party to or affected by any pending or
threatened action, suit or proceeding, (iv) is bound by any
judgment, decree or order or (v) has entered into any
agreement, in each case relating to any alleged violation of any
Environmental Law or any actual or alleged release or threatened
release or cleanup at any location of any Hazardous Materials (as
defined below) (as used herein, “ Environmental Law
” means any federal, state, local or foreign law, statute,
ordinance, rule, regulation, order, decree, judgment, injunction,
permit, license, authorization or other binding requirement, or
common law, relating to health, safety or the protection, cleanup
or restoration of the environment or natural resources, including
those relating to the distribution, processing, generation,
treatment, storage, disposal, transportation, other handling or
release or threatened release of Hazardous Materials, and “
Hazardous Materials ” means any material (including,
without limitation,
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pollutants,
contaminants, hazardous or toxic substances or wastes) that is
regulated by or may give rise to liability under any Environmental
Law);
(aa) in the ordinary course of
its business, the Company and each of the Subsidiaries conducts a
periodic review of the effect of the Environmental Laws on its
business, operations and properties, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any capital or operating
expenditures required for cleanup, closure of properties or
compliance with the Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties);
(bb) all material tax returns
required to be filed by the Company and each of the Subsidiaries
have been filed, and all material taxes and other assessments of a
similar nature (whether imposed directly or through withholding)
including any interest, additions to tax or penalties applicable
thereto due or claimed to be due from such entities have been paid,
other than those being contested in good faith and for which
adequate reserves have been provided;
(cc) the Company and each of
the Subsidiaries maintains insurance covering its properties,
operations, personnel and businesses as the Company deems adequate;
such insurance insures against such losses and risks to an extent
which is adequate in accordance with customary industry practice to
protect the Company and the Subsidiaries and their businesses; all
such insurance is fully in force on the date hereof and will be
fully in force at the time of purchase and any additional time of
purchase;
(dd) except for lost service
days in connection with Hurricane Katrina and Hurricane Rita (which
have been disclosed by the Company in Current Reports on Form 8-K)
and lost service days in connection with Hurricane Wilma (which
lost service days did not have a Material Adverse Effect), neither
the Company nor any of the Subsidiaries has sustained since the
date of the last audited financial statements included in the
Registration Statement, the Pre-Pricing Prospectus and the
Prospectus any loss or interference with its respective business
from fire, explosion, flood or other calamity, whether or not
covered by insurance;
(ee) neither the Company nor
any Subsidiary has sent or received any communication regarding
termination of, or intent not to renew, any of the contracts or
agreements referred to or described in the Pre-Pricing Prospectus,
the Prospectus or any Permitted Free Writing Prospectus, or
referred to or described in, or filed as an exhibit to, the
Registration Statement or any Incorporated Document, and no such
termination or non-renewal has been threatened by the Company or,
to the best of the Company’s knowledge, any other party to
any such contract or agreement;
(ff) the Company and each of
the Subsidiaries maintains a system of internal accounting controls
sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorization;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with
-15-
generally
accepted accounting principles and to maintain accountability for
assets; (iii) access to assets is permitted only in accordance with
management’s general or specific authorization; and
(iv) the recorded accountability for assets is compared with
existing assets at reasonable intervals and appropriate action is
taken with respect to any differences;
(gg) the Company has
established, maintains and evaluates “disclosure controls and
procedures” (as such term is defined in Rule 13a-15 and
15d-15 under the Exchange Act) and “internal control over
financial reporting” (as such term is defined in rule 13a-15
and 15d-15 under the Exchange Act); such disclosure controls and
procedures are designed to ensure that material information
relating to the Company, including its consolidated subsidiaries,
is made known to the Company’s Chief Executive Officer and
its Chief Financial Officer by others within those entities, and
such disclosure controls and procedures are effective to perform
the functions for which they were established; the Company’s
auditors and the Audit Committee of the Board of Directors have
been advised of: (i) any significant deficiencies in the
design or operation of internal controls which could adversely
affect the Company’s ability to record, process, summarize,
and report financial data; and (ii) any fraud, whether or not
material, that involves management or other employees who have a
role in the Company’s internal controls; any material
weaknesses in internal controls have been identified for the
Company’s auditors; and since the date of the most recent
evaluation of such disclosure controls and procedures, there have
been no significant changes in internal controls or in other
factors that could significantly affect internal controls,
including any corrective actions with regard to significant
deficiencies and material weaknesses; the principal executive
officers (or their equivalents) and principal financial officers
(or their equivalents) of the Company have made all certifications
required by Sections 302 and 906 of the Sarbanes-Oxley Act of
2002 (the “ Sarbanes-Oxley Act ”) and any
related rules and regulations promulgated by the Commission, and
the statements contained in each such certification are complete
and correct;
(hh) the Company has provided
you true, correct and complete copies of all documentation
pertaining to any extension of credit in the form of a personal
loan made, directly or indirectly, by the Company to any director
or executive officer of the Company, or to any family member or
affiliate of any director or executive officer of the Company; and
since July 30, 2002, the Company has not, directly or
indirectly, including through any subsidiary: (i) extended
credit, arranged to extend credit or renewed any extension of
credit, in the form of a personal loan, to or for any director or
executive officer of the Company, or to or for any family member or
affiliate of any director or executive officer of the Company; or
(ii) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate
of any director or executive officer, which loan was outstanding on
July 30, 2002;
(ii) any statistical and
market-related data included or incorporated by reference in the
Registration Statement and the Prospectus are based on or derived
from sources that the Company believes to be reliable and accurate,
and the Company has obtained the written consent to the use of such
data from such sources to the extent required;
-16-
(jj) neither the Company nor
any of the Subsidiaries nor, to the best of the Company’s
knowledge, any employee or agent of the Company or the Subsidiaries
has made any payment of funds of the Company or the Subsidiaries or
received or retained any funds in violation of any law, rule or
regulation, which payment, receipt or retention of funds is of a
character required to be disclosed in the Registration Statement or
the Prospectus;
(kk) neither the Company nor
any of the Subsidiaries nor, to the best of the Company’s
knowledge, any of their respective directors, officers, affiliates
or controlling persons has taken, directly or indirectly, any
action designed, or which has constituted or might reasonably be
expected to cause or result in, under the Exchange Act or
otherwise, the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of the
Shares;
(ll) to the best of the
Company’s knowledge, there are no affiliations or
associations between any member of the NASD and any of the
Company’s officers, directors or 5% or greater
securityholders, except as set forth in the Registration Statement
and the Prospectus;
(mm) the Registration
Statement, the Prospectus and any preliminary prospectus comply,
and any further amendments or supplements thereto will comply, with
any applicable laws or regulations of any foreign jurisdiction in
which the Prospectus or any preliminary prospectus is distributed
in connection with the Directed Share Program; and no approval,
authorization, consent or order of or filing with any governmental
or regulatory commission, board, body, authority or agency, other
than those obtained, is required in connection with the offering of
the Reserved Shares in any jurisdiction where the Reserved Shares
are being offered;
(nn) the Company has not
offered, or caused the Underwriters to offer, Shares to any person
other than the Company’s officers, directors and employees;
and
(oo) each of the Company and
the Subsidiaries that owns any of the marine vessels described in
the Prospectus (the “ Vessels ”) is and at all
times has been a citizen of the United States within the meaning of
Section 2 of the Shipping Act, 1916, as amended (the “
Shipping Act ”), and qualified to engage in the
coastwise trade of the United States. During the period that the
Company or any of the Subsidiaries has owned any of the Vessels,
none of the Vessels has been sold, chartered or otherwise
transferred to any person or entity in violation of any applicable
laws, rules or regulations. Each Vessel is properly documented
under the laws of the United States with all necessary endorsements
to operate in the United States coastwise trade and, where
applicable, maintained and operated in compliance with the
requirements of a currently valid Certificate of Inspection issued
by the United States Coast Guard.
In addition, any
certificate signed by any officer of the Company or any of the
Subsidiaries and delivered to the Underwriters or counsel for the
Underwriters in connection with the offering of the Shares shall be
deemed to be a representation and warranty by the Company or
Subsidiary, as the case may be, as to matters covered thereby, to
each Underwriter.
-17-
4.
Certain Covenants of the Company . The Company hereby
agrees:
(a) to furnish such
information as may be required and otherwise to cooperate in
qualifying the Shares for offering and sale under the securities or
blue sky laws of such states or other jurisdictions as you may
designate and to maintain such qualifications in effect so long as
you may request for the distribution of the Shares; provided
that the Company shall not be required to qualify as a foreign
corporation or to consent to the service of process under the laws
of any such jurisdiction (except service of process with respect to
the offering and sale of the Shares); and to promptly advise you of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or
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