CONFIDENTIALITY AGREEMENT
Exhibit 99.3
February 24, 2011
Xxxxxx Capital Management, L.P.
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
0000 Xxxxx Xxxxxxx Xxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
In connection with the analysis of a possible debtor in possession financing transaction
(“Possible DIP Loan”) between Seahawk Drilling, Inc. and its affiliates and subsidiaries
(collectively, “Seahawk”) and Xxxxxx Capital Management, L.P. and its affiliates and subsidiaries
(collectively, “Receiving Party,” and together with Seahawk, the “parties” and each a “party”),
Seahawk may furnish Receiving Party certain information that is proprietary, non-public, or
confidential concerning Seahawk, its business and operations (the “Business”), and possible other
transactions involving Seahawk. In connection with such analysis, Receiving Party hereby agrees to
the following (it being understood that Receiving Party is also agreeing to cause its
Representatives (as defined below) and affiliates to comply with the applicable provisions hereof):
1. Use of Confidential Material. The Confidential Material (as defined below) made available
to Receiving Party will be used by such Receiving Party solely for the purpose of evaluating a
Possible DIP Loan between Seahawk and Receiving Party pursuant to a Definitive Agreement (as
defined below) between the parties, and should discussions between Seahawk and Receiving Party
progress to such a point, negotiating a Definitive Agreement and related loan documents with
respect thereto, and shall not be used in connection with any activities conducted by Receiving
Party or any of its Representatives in competition with the Business or otherwise in a manner known
by Receiving Party to be detrimental or disadvantageous to Seahawk. The disclosure of Confidential
Material by Seahawk to Receiving Party as contemplated hereunder would not occur but for the
existence of this confidential relationship and for a prospective financing arrangement by and
between the parties. All of the Confidential Material concerning Seahawk will be kept confidential
by Receiving Party and its
Representatives and will not be disclosed in whole or in part thereby to any other persons in
any manner; provided that Receiving Party may disclose the Confidential Material or portions
thereof to its Representatives who (i) need to know such information for the purpose of evaluating
such a Possible DIP Loan involving the parties, (ii) are informed by Receiving Party of the
confidential nature of such information, and (iii) agree, and are directed by Receiving Party, to
treat such information confidentially in accordance with this letter to the same extent as if they
were parties hereto. Receiving Party agrees to be responsible for compliance with this letter, and
breach hereof, by any of its Representatives, but Seahawk shall be entitled to directly enforce the
agreements of such Representatives and to cause Receiving Party to enforce such agreements.
Receiving Party shall, and shall cause its Representatives to, use all commercially reasonable and
prudent efforts to protect and safeguard the Confidential Material from misuse, loss, theft,
publication, or the like and to ensure that such Representatives who receive any of the
Confidential material shall do likewise.
2. Legally Required Disclosures. In the event that Receiving Party or any of its
Representatives is required by applicable law, regulation, rule, stock exchange rule, or in
connection with any legal proceedings or otherwise requested by any governmental agency or
regulatory authority (claiming to have jurisdiction) to disclose any of the Confidential Material,
the Receiving Party or such Representative shall (to the extent legally permissible to do so),
prior to making any such disclosure promptly provide Seahawk with written notice of the existence,
terms, circumstances surrounding such disclosure requirement (together with a copy of the
Confidential Material proposed to be disclosed and a description of the legal provisions or court
orders requiring the disclosure), and provide such reasonable cooperation as Seahawk shall
reasonably request so that Seahawk may seek a protective order or other appropriate remedy or, if
it so elects, waive compliance with certain terms of this letter. In the event that such
protective order or other remedy is not obtained, or Seahawk waives compliance with the provisions
hereof, Receiving Party or such Representative, as the case may be, may disclose only that portion
of the Confidential Material or information that the recipient of such request is advised by
counsel is legally required to be disclosed, and shall give Seahawk a reasonable opportunity to
review the proposed disclosure and comment thereon and shall exercise all reasonable efforts to
obtain assurance that confidential treatment will be accorded the information so disclosed.
Notwithstanding the foregoing, Receiving Party shall not be required to inform, or give notice to,
Seahawk or provide copies of Confidential Material to Seahawk, if the disclosure of Confidential
Material is made to a regulatory examiner in the course of such examiner’s examination or
inspection of Receiving Party.
3. Definition of Confidential Material. Subject to paragraph 4 below, the term
“Confidential Material” as used in this letter shall mean (i) should discussions between Seahawk
and Receiving Party progress to such a point, the existence, subject matter, terms (including
pricing terms), conditions, and other facts of any Definitive Agreement and related loan documents
that may be negotiated between Seahawk and Receiving Party, and (ii) any and all information,
documents, records, data, trade secrets, inventions, processes, blueprints, and all non-public,
confidential, or proprietary information of Seahawk, including, without limitation, all marketing,
technical,
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engineering, operational, economic, financial, legal knowledge, or other information
concerning the operations, financial condition, and Business and affairs of Seahawk, or anything of
a proprietary nature, that it furnished or otherwise disclosed to Receiving Party or any of its
Representatives by or on behalf of Seahawk or its Representatives, and whether prepared by Seahawk,
its Representatives, or otherwise (including any such items furnished on and after the execution of
this letter), whether oral, written, or electronic regardless of the form in which initially or
subsequently reflected, together with all analyses, compilations, studies, memoranda, notes, and
other documents, records, and data (in whatever form maintained, whether documentary, computer, or
other electronic storage or otherwise) prepared by Receiving Party or any of its Representatives
which contain or otherwise reflect or are generated from such information and documents.
4. Information Not Included in the Definition of Confidential Material. The term
“Confidential Material” does not include any information to the extent that (i) at the time of
disclosure or thereafter is or becomes generally available to and known by the public (other than
as a result of a disclosure by Receiving Party or any of its Representatives not permitted hereby),
(ii) is developed by Receiving Party or any of its Representatives without reliance on any of the
Confidential Material or portion thereof (Receiving Party shall have the burden of proof to
demonstrate the absence of reliance on the Confidential Material or any portion thereof), or (iii)
is or becomes available to Receiving Party on a non-confidential basis from a source other than
Seahawk or its Representatives, which source is not prohibited from disclosing such information by
a contractual, legal, or other obligation of secrecy or fiduciary duty of confidentiality to
Seahawk or its Representatives (including, without limitation, any parent, subsidiary, other
affiliate, director, officer, equity owner, employee, agent, attorney, accountant, financial
advisor, or other advisor thereof) or is not otherwise restricted from disclosing such Confidential
Material.
5. Return or Destruction of Materials. Upon request of Seahawk or in the event that Receiving
Party decides not to proceed with a Possible DIP Loan with Seahawk, Receiving Party and its
Representatives will promptly (and in any case within 14 days after a request by Seahawk) return to
Seahawk or, alternatively, destroy all Confidential Material and all copies, notes or extracts
thereof then in Receiving Party’s possession or control or in the possession or control of any of
its Representatives and any other written or electronic material containing or reflecting any of
the Confidential Information or any portion thereof, irrespective of the source, without retaining
any copies, extracts, or reproductions thereof (including, to the extent practicable, expunging
copies from any computer or other device) and will destroy promptly all copies of any analyses,
compilations, studies or other documents, records and data prepared by it or any of its
Representatives which contain or otherwise reflect or are generated from the Confidential Material
pursuant to this letter. An officer of Receiving Party will certify to Seahawk in writing that any
such return or destruction has been timely and fully accomplished. Notwithstanding the foregoing,
Receiving Party shall not be required to delete or destroy any electronic media containing
Confidential Material that was created in the ordinary course of business for the sole purpose of
disaster recovery/network
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backup provided that any Confidentiality Material contained in such electronic media shall
continue to be subject to the confidentiality provisions hereof.
6. Nondisclosure of Possible DIP Loan. Without the prior written consent of the other party,
and except as required by law or stock exchange rule, each party will not, and will direct and
cause its respective Representatives not to, disclose to any person (i) the existence of this
letter and the fact that Confidential Material is being or has been made available, (ii) that any
investigation, discussions, or negotiations are or have been taking place concerning a Possible DIP
Loan between the parties, (iii) that the parties or any of their respective Representatives are or
have been considering or reviewing a transaction involving or relating to the other party, and (iv)
the terms, conditions, or other facts with respect to any such Possible DIP Loan or actions,
including the status thereof (collectively, the “Transactional Information”); provided, that
Seahawk may disclose such Transactional Information to, and may provide copies of any draft or
final commitment letter, term sheet, and other loan documents between it and the Receiving Party
to, Hercules Offshore, Inc. or any of its successors. Receiving Party’s obligations in the
preceding sentences shall survive any return or destruction of the Confidential Material pursuant
to paragraph 5. In the event that Receiving Party or any of its Representatives is
required by law, regulation, or stock exchange rule to disclose any of the Transactional
Information, the Receiving Party and such representative shall (to the extent legally permissible
to do so), prior to making any such disclosure, promptly provide Seahawk with written notice of
such requirement (together with a copy of the material proposed to be disclosed) and shall
reasonably cooperate with Seahawk so that Seahawk may seek a protective order or other appropriate
remedy or, if it so elects, waive compliance with certain terms of this paragraph 6. In
the event that such protective order or other remedy is not obtained, or Seahawk waives compliance
with the provisions of this paragraph 6, the Receiving Party may disclose only that portion
of the Transactional Material that the Receiving Party is advised by counsel is legally required to
be disclosed, and shall give Seahawk a reasonable opportunity to review the proposed disclosure and
comment thereon and shall exercise all reasonable efforts to obtain assurance that confidential
treatment will be accorded the Transactional Information so disclosed.
7. No Representation or Warranty. Receiving Party understands that neither Seahawk nor any of
its Representatives has made or makes any representation or warranty as to the accuracy or
completeness of the Confidential Material and that nothing contained in any discussions between
Seahawk or its Representatives and Receiving Party or its Representatives shall be deemed to
constitute a representation or warranty. Receiving Party further agrees that neither Seahawk nor
any of its Representatives shall have any liability to the Receiving Party or any of its
Representatives resulting from the use of the Confidential Material. Only those representations or
warranties that are made in a Definitive Agreement when, as, and if such agreement is executed, and
subject to such limitations and restrictions as may be specified in such Definitive Agreement, will
have any legal effect.
8. Definitive Agreement. Receiving Party understands and agrees that no contract or agreement
providing for a proposed financing arrangement shall be
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deemed to exist between the parties unless and until a definitive financing agreement has been
executed and delivered by each of the parties (the “Definitive Agreement”) and Receiving Party
hereby waives in advance any claims (including, without limitation, breach of contract) in
connection with a proposed financing arrangement except those arising under an executed and
delivered Definitive Agreement. It is also agreed that unless and until a Definitive Agreement has
been executed and delivered, neither party has any legal obligation of any kind whatsoever with
respect to any such proposed financing arrangement, except for matters specifically agreed to
herein. The term “Definitive Agreement” does not include an executed letter of intent or any other
preliminary written agreement, nor does it include any written or oral offer or any written or oral
acceptance thereof. This letter does not constitute or create any obligation of Seahawk to provide
any Confidential Material or other information to the other party, but merely defines the rights,
duties and obligations of the parties with respect to Confidential Material to the extent it may be
disclosed or made available. Under no circumstances is Seahawk obligated to disclose or make
available any information, including any Confidential Material that Seahawk in its sole discretion
determines not to disclose. Neither this paragraph 8 nor any other provision in this letter
can be waived or amended except by written consent of Seahawk, which consent shall specifically
refer to this paragraph 8 (or such other provision) and explicitly make such waiver or
amendment.
9. Securities Laws. Receiving Party hereby acknowledges that it is aware, and that it will
advise its Representatives who are informed as to the matters that are the subject of this letter,
that the United States securities laws prohibit any person who has material, non-public information
concerning Seahawk from purchasing or selling securities of Seahawk or from communicating such
information to any other person under circumstances in which it is reasonably foreseeable that such
person is likely to purchase or sell such securities. Receiving Party agrees that it will not use
or cause any other person to use, and that it will use reasonable efforts to assure that none of
its Representatives will use or cause any other person to use, any Confidential Material in
contravention of the United States securities laws.
10. Remedies. Receiving Party agrees that money damages would not be a sufficient remedy for
any breach of this letter and that Seahawk shall be entitled to seek equitable relief, including,
without limitation, injunction and specific performance, in the event of any such breach, and
Receiving Party further agrees to waive any requirement for the security or posting of any bond in
connection with such remedy. Such remedy shall not be the exclusive remedy for such breach but
shall be in addition to all other remedies available to Seahawk at law or in equity. Receiving
Party also agrees to reimburse Seahawk for all costs and expense, including reasonable attorneys’
fees, incurred by Seahawk in enforcing Receiving Party’s obligations hereunder. Receiving Party
agrees to immediately notify Seahawk of any breach of this letter by it or any of its
Representatives.
11. No Waiver; Entire Agreement. It is understood and agreed that no failure or delay by
Seahawk in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor
will any single or partial exercise thereof preclude any
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other or further exercise thereof or the exercise of any other right, power or privilege
hereunder. This letter contains the entire agreement and understanding between Seahawk and
Receiving Party with respect to the matters referred to herein and supersedes all prior
understandings and agreements, whether written or oral, between Seahawk and Receiving Party with
respect thereto.
12. Person; Representatives; Affiliates. As used in this letter, (i) the term “person” will be
interpreted broadly to include, without limitation, any corporation, company, group, partnership,
limited liability company, other entity or individual, (ii) the term “Representative,” when used
with respect to a person, shall include the directors, officers, employees, representatives,
agents, attorneys, consultants, accountants, financial advisors and other advisors of or to such
person, and (iii) the term “affiliate” when used with respect to a person, shall have the meaning
given to it in Rule 12b-2 under the Securities Exchange Act of 1934.
13. Consent to Counsel. The parties agree that, irrespective of any prior representation by
such legal counsel or any Confidential Material or other confidential information that may be
exchanged pursuant to this letter, the parties shall be respectively entitled to use any of their
regular outside counsel (for Seahawk, Fulbright & Xxxxxxxx L.L.P. and for Receiving Party, Xxxxx
Day) for all purposes in connection with this letter, any transaction involving the parties and any
litigation or legal proceedings arising out of or relating to this letter or any such transaction.
14. Notices. All notices to be given to a party hereunder shall be in writing and delivered
personally, by overnight courier or by facsimile (with confirmation of receipt), addressed to the
Chief Executive Officer of such party, with a copy to the General Counsel of such party, at the
corporate headquarters of such party.
15. Assignment; Amendment. Any assignment or attempted assignment of this letter by Receiving
Party without the prior written consent of Seahawk shall be void.. The agreements set forth in
this letter may be modified or waived only as agreed in writing by Seahawk and Receiving Party.
16. Severability. If any term, provision, covenant, or restriction of this letter is held by
a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the
terms, provisions, covenants, and restrictions of this letter shall remain in full force and effect
and shall in no way be affected, impaired, or invalidated.
17. Counterparts. This letter may be executed in any number of counterparts each of which,
when so executed, shall be deemed to be an original and all of which taken together shall
constitute one and the same agreement. A facsimile transmission of a signed copy of this letter
shall be effective as a valid and binding agreement between the parties for all purposes.
18. Governing Law. This letter is for the benefit of each party and will be governed by and
construed in accordance with the laws of the State of Texas, without giving effect to the choice of
law rules thereof. Each party hereby irrevocably submits to
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(i) the jurisdiction of Texas state courts and any federal court sitting in the State of Texas
for purposes of any suit, action or other proceeding arising out of this letter, or of the
transactions contemplated hereby, that is brought by or against the other party, and (ii) the venue
of such suit, action or proceeding in the State of Texas.
19. Term. This letter shall terminate upon the earlier of (i) a written agreement between the
parties to terminate the confidential relationship established herein and (ii) the first
anniversary of the date hereof.
If Receiving Party agrees with the foregoing, please execute two original counterparts to this
letter and return one to Seahawk, which will constitute our agreement with respect to the subject
matter of this letter.
***
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Very truly yours,
SEAHAWK DRILLING, INC.
By:
Name:
Title:
Name:
Title:
CONFIRMED AND AGREED
as of the date first written above:
as of the date first written above:
XXXXXX CAPITAL MANAGEMENT, L.P.
By:
|
Xxxxxx Investments, LLC, | |||
| its general partner | ||||
| Chief Operating Officer |
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