As filed with the Securities and Exchange Commission on June 26, 2009May 29, 2020
Registration No. 333-159341333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549[
Pre-Effective Amendment No. 220549
to
FORMForm S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SILVERBOW RESOURCES, INC.
SILVERBOW RESOURCES OPERATING, LLC
(Exact name of registrants as specified in their charters)
Texas | SWIFT ENERGY COMPANY | 20-3940661 |
| |
Delaware
Texas | SWIFT ENERGY OPERATING, LLC | 20-3940661
20-3892961 |
(StateStates or other jurisdictionjurisdictions of
incorporation or organization)
| (Exact name of registrant as specified in its charter) | (I.R.S. Employer
Identification No.Nos.)
|
16825 Northchase Drive,575 North Dairy Ashford, Suite 400
1200
Houston, Texas 77060
77079
(281) 874-2700
(Address, including zip code, and telephone number, including area code,
of registrants’ principal executive offices)
Laurent A. BaillargeonChristopher M. Abundis
Executive Vice President, Chief Financial Officer,
General Counsel
16825 Northchase Drive, & Secretary
SilverBow Resources, Inc.
575 North Dairy Ashford, Suite 400
1200
Houston, Texas 77060
77079
(281) 874-2700
(Name,
(Name, address, including zip code, and telephone number, including area code, of agent for service)
Copies to:
Christopher M. Abundis
Corporate Counsel
Swift Energy Company
16825 Northchase Drive, Suite 400
Houston, Texas 77060
(281) 874-2571
| Donald W. Brodsky
Judy G. Gechman
Baker & Hostetler LLP
1000 Louisiana Street
Suite 2000
Houston, Texas 77002
(713) 646-1335
|
Copies to:
Michael S. Telle
David P. Oelman
Vinson & Elkins L.L.P.
1001 Fannin, Suite 2500
Houston, Texas 77002
(713) 758-2222
Approximate date of commencement of proposed sale to the publicpublic:: From time to time after this registration statement becomes effective, as determined by market conditions and other factors.
If the only securities being registered on this formForm are being offered pursuant to dividend or interest reinvestment plans, please check the following box.
o
If any of the securities being registered on this formForm are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box. þ
If this formForm is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this formForm is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this formForm is a registration statement pursuant to General Instruction I.D. or a post-effective amendment thereto that shall become effective upon filing with the Commission pursuant to Rule 462(e) under the Securities Act, check the following box. o
If this formForm is a post-effective amendment to a registration to a registration statement filed pursuant to General Instruction I.D. filed to register additional securities or additional classes of securities pursuant to Rule 413(b) under the Securities Act, check the following box.
o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer”, “accelerated filer,” “accelerated filer”“smaller reporting company,” and “”smaller reporting“emerging growth company” in Rule 12b-7rule 12b-2 of the Exchange Act. Check one:
Large Accelerated Filer o Accelerated Filer þ Large accelerated filer Non-Accelerated Filer o(Do not check if a smaller reporting company) Smaller Reporting Company þ
Emerging Growth Company o If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 7(a)(2)(B) of the Securities Act. o | Accelerated filer | Non-accelerated filer
(Do not check if Smaller reporting company)
| Smaller reporting company |
CALCULATION OF REGISTRATION FEE
Title of Each Class of Securities to be Registered(1) | Proposed Maximum Aggregate Offering Price(1)(2) | Amount of Registration Fees(3) |
| Debt Securities(4) | | |
| Common Stock, par value $.01 per share(5) | | |
| Preferred Stock, par value $.01 per share(5) | | |
| Depositary Shares(6) | | |
| Warrants | | |
| Guarantees of Debt Securities(7) | | |
| Total | $500,000,000 | $27,900 |
|
| | | | |
Title of Each Class of
Securities to Be Registered(1)(2) | Amount to Be Registered | Proposed Maximum Offering Price per Security | Proposed Maximum Aggregate Offering Price (6)(7)(8) | Amount of Registration Fee (6)(8) |
| Primary Offering: | | | | |
| Debt Securities(3)(4) | | | | |
| Guarantee of Debt Securities(4) | | | | |
| Preferred Stock | | | | |
| Common Stock | | | | |
| Depositary Shares(5) | | | | |
| Warrants | | | | |
| Total Primary | N/A | N/A | $250,000,000 | $(11) |
| Secondary Offering: | | | | |
| Common Stock | 7,422,178 | (9) | $4.05(10) | $(12) |
| Total (Primary and Secondary) | | | | $0 |
| | |
| (1) | This registration statement also covers such indeterminate amount of securities as may be issued in exchange for, or upon conversion, redemption or exercise of, as the case may be, debt securities, preferred stock, depositary share or warrants registered hereunder, including under any applicable anti-dilution provisions pursuant to 416(a) of the Securities Act. Any securities registered hereunder may be sold separately or as units with other securities registered hereunder. This total |
| |
| (2) | There is being registered hereunder such indeterminate number or amount also includes suchof debt securities, preferred stock, common stock, depositary shares and warrants as may from time to time be issued upon conversion or exchange of securities registered hereunder, toby the extent any such securities are, by their terms, convertible into or exchangeable for other securities. |
(2) | An indeterminateregistrant, which together shall have an aggregate offering price and number or amount of debt securities, common stock, preferred stock, depositary shares, warrants and guarantees of debt securities is being registered as may from time to time be sold at indeterminate prices, with a maximum aggregateinitial offering price not to exceed $500,000,000. |
(3) | Not specified as to each class$250,000,000. This registration statement also covers an indeterminate amount of securities tothat may be issuable upon conversion, redemption, exchange, exercise or settlement of any securities registered hereunder, including under any applicable antidilution provisions. In addition, pursuant to General Instruction II.D of Form S-3 under the Securities Act. Pursuant to Rule 457(o)416 under the Securities Act of 1933, as amended (the “Securities Act”), the registration fee has been calculated onshares being registered hereunder include such indeterminate number of shares of common stock and preferred stock as may be issuable with respect to the basisshares being registered hereunder as a result of the maximum offering price. The registration fee due was paid contemporaneously with the filing of the Registration Statement No. 333-159341 on May 19, 2009.stock splits, stock dividends or similar transactions. |
| |
(4)(3) | If any debt securities are issued at an original issue discount, then the offering price of thesuch debt securities shall be in such amount as shall result in an aggregate initial offering price not to exceed $500,000,000, or the equivalent thereof in foreign currencies, foreign currency units or composite currencies,$250,000,000, less the offering pricedollar amount of any registered securities previously issued hereunder.issued. |
| |
(5)(4) | Attached to each shareIf a series of common stockdebt securities is a preferred share purchase right pursuant to the Rights Agreement (as Amended and Restated as of March 31, 1999, and as further amended on December 12, 2005, and December 21, 2006) and the Assignment Assumption, Amendment and Novation Agreement dated December 28, 2005 between Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent. Until the occurrence of certain prescribed events, none of which has occurred, the rights are not detachable from the common stock nor exercisable and willguaranteed, such series may be transferred along with, and only with, the common stock. Accordingly, no separate registration fee is payable with respect thereto. |
(6) | Such indeterminate number of depositary shares will be representedguaranteed by depositary receipts. In the event that the Registrant elects to offer to the public fractional interests in shares or preferred stock registered hereunder, depositary receipts will be distributed to those persons purchasing the fractional interest and the shares of preferred stock will be issued to the Depository under the deposit agreement. |
(7) | SilverBow Resources Operating, LLC. In accordance with Rule 457(n), no separate fee is payable with respect to anythe guarantee of the debt securities being registered. |
Each Registrant hereby amends this Registration Statement on such date | |
| (5) | The depositary shares being registered will be evidenced by depositary receipts issued under a depositary agreement. If SilverBow Resources, Inc. elects to offer fractional interests in shares of preferred stock to the public, depositary receipts will be distributed to the investors purchasing the fractional interests, and the shares will be issued to the depositary under the depositary agreement. |
| |
| (6) | No separate consideration will be received for any securities being registered that are issued in exchange for, or dates as may be necessaryupon conversion or exercise of, the debt securities, preferred stock, depositary shares or warrants being registered hereunder. |
| |
| (7) | Pursuant to delay itsGeneral Instruction I.B.6. of Form S-3, if the aggregate market value of the registrant’s outstanding voting and non-voting common equity held by non-affiliates does not equal or exceed $75,000,000 subsequent to the effective date untilof this registration statement, then the Registrantaggregate offering price of all types of securities that the registrant may issue in primary offerings pursuant to this registration statement in any 12-month period may not exceed one-third of the aggregate market value of the voting and non-voting common equity held by non-affiliates of the registrant. In the event that subsequent to the effective date of this registration statement, the aggregate market value of the registrant’s outstanding voting and non-voting common equity held by non-affiliates equals or exceeds $75,000,000, then such one-third limitation on sales shall file a further amendment which specifically states thatnot apply to additional sales made in primary offerings pursuant to this Registration Statement shall thereafter become effectiveregistration statement. |
| |
| (8) | Rule 457(o) permits the registration statement fee to be calculated on the basis of the proposed maximum aggregate offering price of all of the securities listed. Therefore, the table does not specify information as to the amount to be registered by each class or the proposed maximum offering price per security. |
| |
| (9) | With respect to the offering of shares of common stock by the selling stockholders, the proposed maximum offering price per common share will be determined from time to time in accordanceconnection with, Section 8(a)and at the time of, sale by the holder of such securities. |
| |
| (10) | Estimated pursuant to Rule 457(c) solely for the purpose of calculating the registration fee. The proposed maximum aggregate offering price per security was calculated based upon the average of the high and low prices per share of common stock of SilverBow Resources, Inc., as reported by the New York Stock Exchange on May 22, 2020. |
| |
| (11) | Pursuant to Rule 415(a)(6) under the Securities Act of 1933, asthis registration statement includes a total of $250,000,000 of unsold securities registered in the primary offering (the “Primary Unsold Securities”) that had previously been registered under the registrant’s registration statement on Form S-3, initially filed on March 17, 2017, File No. 333-216782, and amended or untilby Amendment No. 1 to such registration statement, filed May 25, 2017 (as amended, the “Prior Registration Statement”). The registrant did not sell any of the Primary Unsold Securities registered under the Prior Registration Statement, shall become effectiveleaving a balance of Primary Unsold Securities with an aggregate offering price of $250,000,000. In connection with the registration of such Primary Unsold Securities on the Prior Registration Statement, the registrant paid a registration fee, calculated in accordance with Rule 457(o) under the Securities Act, of $28,975 for such Primary Unsold Securities, which fee will continue to be applied to such Primary Unsold Securities. Accordingly, there is no registration fee due in connection with the proposed maximum offering price of such Primary Unsold Securities registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of the Primary Unsold Securities registered under the Prior Registration Statement will be deemed terminated as of the date as the Commission, acting pursuant to said Section 8(a), may determine.of effectiveness of this registration statement. |
| |
| (12) | Pursuant to Rule 415(a)(6) under the Securities Act, this registration statement includes 7,422,178 unsold securities registered for sale by certain selling stockholders (the “Secondary Unsold Securities”) that had previously been registered under the Prior Registration Statement. The selling stockholders did not sell any of the Secondary Unsold Securities registered under the Prior Registration Statement, leaving a balance of 7,422,178 Secondary Unsold Securities. In connection with the registration of such Secondary Unsold Securities on the Prior Registration Statement, the registrant paid a registration fee, calculated in accordance with Rule 457(o) under the Securities Act, of $22,606.85 for such Secondary Unsold Securities, which fee will continue to be applied to such Secondary Unsold Securities. Accordingly, there is no registration fee due in connection with the proposed maximum offering price of such Secondary Unsold Securities registered on this registration statement. Pursuant to Rule 415(a)(6), the offering of the Secondary Unsold Securities registered under the Prior Registration Statement will be deemed terminated as of the date of effectiveness of this registration statement. |
Each registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933, as amended, or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and it is not soliciting an offer to buy these securities in any state where the offer or sale is not permitted. |
SUBJECT TO COMPLETION, June 26, 2009DATED MAY 29, 2020
The information in this prospectus is not complete and may be changed. We may not sell these securities until the registration statement filed with the Securities and Exchange Commission is effective. This prospectus is not an offer to sell these securities and we are not soliciting offers to buy these securities in any jurisdiction where the offer or sale is not permitted.
Prospectus
$250,000,000
Debt SecuritiesSwift Energy Company
$500,000,000
Debt Securities
Common Stock
Preferred Stock
Depositary Shares
Warrants
Guarantees of Debt Securities
We may offer and sell the securities listed above from time to time debt securities, common stock, preferred stock, depositary shares, warrantsin one or more classes or series and unsecured guaranteesin amounts, at prices and on terms that we will determine at the time of debt securities.the offering. Our subsidiary, Swift EnergySilverBow Resources Operating, LLC, a Texas limited liability company, may guarantee the debt securities we issue.
This prospectus describes the general terms The aggregate initial offering price of the offered securities and the general manner in whichthat we will offer these securities. We will provide specific terms of any offering in supplements to this prospectus. The securities may be offered separately or together in any combination and as separate series. You should read this prospectus and any supplement carefully before you make your investment decision.not exceed $250,000,000.
We may offer and sell securities to or through one or more underwriters, dealer and agents, or directly to purchasers, on a continuous or delayed basis. If we use underwriters, dealers, or agents to sellIn addition, the securities, we will name them and describe their compensation in a prospectus supplement. The net proceeds we expect to receive from these sales will be described in the prospectus supplement.
Our common stock is traded on the New York Stock Exchange under the symbol “SFY.”
The securities offeredselling stockholders named in this prospectus involve a high degree of risk. You should carefully consider the matters set forth in “Risk Factors” on page 4 of this prospectus, in any prospectus supplement or incorporated by reference herein or therein in determining whethermay, from time to purchase our securities.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is _________, 2009
About this prospectus
This prospectus is part of a registration statement that we filed with the Securities and Exchange Commission using a “shelf” registration process. Under the shelf process, we may sell any combination of the securities described in this prospectustime, in one or more offerings, offer and sell up to 7,422,178 shares of our common stock. We will not receive any proceeds from any sale of shares of our common stock by the selling stockholders. For a total dollar amountmore detailed discussion of $500,000,000. the selling stockholders, please read “Selling Stockholders.”
This prospectus provides you with a general description of the securities wethat may offer.be offered. Each time we sell securities are offered, we will provide a prospectus supplement. The prospectus supplement that will contain more specific information about the offering and the terms of that offering.the securities being offered, including any guarantees by our subsidiary. The prospectus supplementsupplements may also add, update or change information contained in this prospectus. This prospectus may not be used to offer or sell securities without a prospectus supplement describing the method and terms of the offering.
The securities may be offered and sold on a delayed or continuous basis directly by us or the selling stockholders, through agents, underwriters or dealers as designated from time to time, through a combination of these methods or any other method as provided in the applicable prospectus supplement. See “Plan of Distribution.” The prospectus supplement will list any agents, underwriters or dealers that may be involved and the compensation they will receive.
You should carefully read this prospectus and any applicableaccompanying prospectus supplement, together with additional information described under the heading “Where you can find more information”documents we incorporate by reference, before you invest in any of theseour securities.
Investing in our securities involves risk. Please see “Risk Factors” on page 8 for a discussion of certain risks that you should consider in connection with an investment in the securities.
TableOur common stock is listed on the New York Stock Exchange (“NYSE”) under the symbol “SBOW.” As of contents
May 22, 2020 the aggregate market value of our outstanding common stock held by non-affiliates, or public float, was approximately $18,417,360 million, based on 11,886,543 shares of outstanding common stock, of which approximately 7,394,504 shares were held by affiliates, and a price of $4.10 per share, which was the price at which our common stock was last sold on the NYSE on such date. We have not offered any securities pursuant to General Instruction I.B.6 of Form S-3 during the prior 12-calendar-month period that ends on and includes the date of this prospectus. Pursuant to General Instruction I.B.6 of Form S-3, in no event will we sell securities registered on this
registration statement in a public primary offering with a value exceeding more than one-third of our public float in any 12-month period so long as our public float remains below $75,000,000 (the “Baby Shelf Limitation”). The Baby Shelf Limitation will not be applicable to sales of shares of our common stock by the selling stockholders named in this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
This prospectus is dated , 2020.
TABLE OF CONTENTS
|
| |
| | Page |
| |
Forward-looking statements | 1 |
| 2 |
Incorporation of certain documents by reference | 2 |
| 3 |
The subsidiary guarantors | 3 |
Risk factors | 3 |
Use | 3 |
Ratio | 4 |
| 4 |
| 13 |
Description | 17 |
Description of warrants | 18 |
Plan of distribution | 18 |
Legal matters | 20 |
Experts | 20 |
| |
You should rely only on the information contained or incorporated by reference in this prospectus and any prospectus supplement. We have not authorized any dealer, salesperson or other person to provide you with additional or different information. If anyone provides you with different or inconsistent information, you should not rely on it. This prospectus and any prospectus supplement are not an offer to sell or the solicitation of an offer to buy any securities other than the securities to which they relate and are not an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make an offer or solicitation in that jurisdiction. You should not assume that the information in this prospectus or any prospectus supplement or in any document incorporated by reference in this prospectus or any prospectus supplement is accurate as of any date other than the date of the document containing the information.
You should read carefully the entire prospectus, as well as the documents incorporated by reference in the prospectus and the applicable prospectus supplement, before making an investment decision.
Unless the context requires otherwise or unless otherwise noted, all references in this prospectus or any accompanying prospectus supplement to “Swift Energy,“SilverBow Resources” “Company,” “we,” “us,” or “our” are to Swift Energy CompanySilverBow Resources, Inc. and, as applicable, its subsidiaries.
ABOUT THIS PROSPECTUS
Forward-looking statements
SomeThis prospectus is part of a registration statement that we filed with the Securities and Exchange Commission (the “SEC”) using a “shelf” registration process. Under the shelf process, we may sell any combination of the securities described in this prospectus in one or more offerings up to a total dollar amount of $250,000,000, subject to the Baby Shelf Limitation. In addition, the selling stockholders named in this prospectus may sell up to 7,422,178 shares of our common stock as described in this prospectus in one or more offerings. This prospectus provides you with a general description of the securities we or the selling stockholders may offer. Each time we or the selling stockholders sell securities pursuant to the registration statement of which this prospectus forms a part, we will provide a prospectus supplement that will contain specific information about the terms of that offering. We may also authorize one or more free writing prospectuses to be provided to you that may contain material information relating to these offerings. The prospectus supplement (and any related free writing prospectus that we may authorize to be provided to you) may also add, update or change information contained in this prospectus. You should carefully read this prospectus, any applicable prospectus supplement and related free writing prospectus, together with additional information described under the heading “Where You Can Find More Information” before you invest in any of these securities.
The mailing address and telephone number of our principal executive office are as follows:
575 North Dairy Ashford, Suite 1200
Houston, Texas 77079
(281) 874-2700
FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference contain forward-looking statements intended to qualify for the safe harbors from liability established by the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act and Section 21E of the Exchange Act. These forward-looking statements are subject to a number of risks and uncertainties, many of which are beyond our control. All statements, other than statements of historical fact included in this prospectus and the documents we have incorporated by reference, containregarding our strategy, future operations, financial position, estimated production levels, expected oil and natural gas pricing, estimated oil and natural gas reserves or the present value thereof, reserve increases, capital expenditures, budget, projected costs, prospects, plans and objectives of management are forward-looking statements. Forward-looking statements reflect our current views with respect to future events and may be identified by terms such asWhen used in this prospectus, the words “could,” “believe,” “anticipate,” “intend,” “estimate,” “budgeted,” “expect,” “may,” “intend,“continue,” “will,“predict,” “project,“potential,” “budget,” “should” or “anticipate” or other“project” and similar words. These statements discuss “forward-looking” information and may include, among others, statements about anticipated capital expenditures and budgets; sources of capital; future cash flows and borrowings; pursuit of potential future acquisition or drilling opportunities; future production volumes; oil and natural gas reserves; and sources of funding for exploration and development or other uses.
Although we believe the expectations and forecasts reflected in these and otherexpressions are intended to identify forward-looking statements, are reasonable, we can give no assurance they will prove to have been correct. They can be affected by inaccurate assumptions or by known or unknown risks and uncertainties. Factors that could cause actual results to differ materially from expected results are described under “Risk factors” and include:although not all forward-looking statements contain such identifying words.
• | The length and severity of the current credit crisis |
• | volatility in oil and natural gas prices and fluctuation of prices received; |
• | domestic and worldwide economic conditions; |
• | disruption of operations and damages due to hurricanes or tropical storms; |
• | demand or market available for our oil and natural gas production; |
• | production facility constraints; |
• | uncertainty of drilling results, reserve estimates and reserve replacement; |
• | drilling and operating risks; |
• | our level of indebtedness; |
• | the strength and financial results of our competitors; |
• | the availability and cost of capital to fund reserve replacement and other capital expenditures and costs; |
• | uncertainties inherent in estimating quantities of oil and natural gas reserves, projecting future rates of production and the timing of development expenditures; |
• | unexpected substantial variances in capital requirements; and |
There are otherImportant factors that could cause actual results to differ materially from those anticipated,our expectations include, but are not limited to, the following risks and uncertainties:
the severity and duration of world health events, including the recent Coronavirus Disease 2019 (“COVID-19”) outbreak, related economic repercussions and the resulting severe disruption in the oil and gas industry and negative impact on demand for oil and gas, which are discussedis negatively impacting our business;
the current significant surplus in the supply of oil and actions by the members of the Organization of the Petroleum Exporting Countries (“OPEC”) and Russia (together with OPEC and other allied producing countries, “OPEC+”) with respect to oil production levels and announcements of potential changes in such levels, including the ability of the OPEC+ countries to agree on and comply with supply limitations;
operational challenges relating to the COVID-19 pandemic and efforts to mitigate the spread of the virus, including logistical challenges, protecting the health and well-being of our periodic filings with the SEC,employees, remote work arrangements, performance of contracts and supply chain disruptions;
shut-in of production due to decreases in available storage capacity;
volatility in natural gas, oil and natural gas liquids prices;
future cash flows and their adequacy to maintain our ongoing operations;
liquidity, including our most recent Form 10-K. See “Risk factors” on page 3.ability to satisfy our short- or long-term liquidity needs;
our borrowing capacity, future covenant compliance, cash flows and liquidity;
When considering these forward-looking statements, you should keepoperating results;
asset disposition efforts or the timing or outcome thereof;
ongoing and prospective joint ventures, their structure and substance, and the likelihood of their finalization or the timing thereof;
the amount, nature and timing of capital expenditures, including future development costs;
timing, cost and amount of future production of oil and natural gas;
availability of drilling and production equipment or availability of oil field labor;
availability, cost and terms of capital;
drilling of wells;
availability and cost for transportation of oil and natural gas;
costs of exploiting and developing our properties and conducting other operations;
competition in mind the oil and natural gas industry;
general economic conditions;
opportunities to monetize assets;
effectiveness of our risk management activities;
environmental liabilities;
counterparty credit risk;
governmental regulation and taxation of the oil and natural gas industry;
developments in world oil and gas markets and in oil and natural gas-producing countries; and
uncertainty regarding our future operating results.
Many of the foregoing risks and uncertainties are, and will be, exacerbated by the COVID-19 pandemic and any consequent worsening of the global business and economic environment. New factors emerge from time to time, and other cautionary statementsit is not possible for us to predict all such factors. Should one or more of the risks or uncertainties described in this prospectus and in the documents we have incorporated by reference. We specifically disclaim all responsibility to publicly update any information containedreference occur, or should underlying assumptions prove incorrect, actual results and plans could differ materially from those expressed in a forward-looking statement or any forward-looking statementstatements.
All forward-looking statements speak only as of the date they are made. You should not place undue reliance on these forward-looking statements. Although we believe that our plans, intentions and expectations reflected in its entiretyor suggested by the forward-looking statements we make in this prospectus and therefore disclaim any resulting liabilitythe documents incorporated by reference are reasonable, we can give no assurance that these plans, intentions or expectations will be achieved. We disclose important factors that could cause our actual results to differ materially from our expectations under “Risk Factors” in this prospectus on page 8 and in Item 1A of Part I of our Annual Report on Form 10-K for potentially related damages.
Allthe year ended December 31, 2019, and in subsequent Quarterly Reports on Form 10-Q and Current Reports on Form 8-K. These cautionary statements qualify all forward-looking statements attributable to us or persons acting on our behalf.
All subsequent written and oral forward-looking statements attributable to us or to persons acting on our behalf are expressly qualified in their entirety by the foregoing. We undertake no obligation to publicly release the results of any revisions to any such forward-looking statements that may be made to reflect events or circumstances after the date of this cautionary statement.prospectus or to reflect the occurrence of unanticipated events. See also “Where You Can Find More Information.”
Where you can find more informationWHERE YOU CAN FIND MORE INFORMATION
We are subject to the informational requirements of the Securities Exchange Act of 1934, which requires us to file annual, quarterly and special reports, proxy statements and other information with the SEC. You may read and copy any document that we file at the Public Reference Room of the SEC at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for further information on the operation of its public reference room and its copy charges. You may view our SEC filings electronically at the SEC’s Internet site at http://www.sec.gov, or at our own website at http://www.swiftenergy.com.
This prospectus constitutes part ofhave filed a registration statement on Form S-3 filed with the SEC under the Securities Act of 1933. It omits some1933, as amended (the “Securities Act”), that registers the offer and sale of the securities offered by this prospectus. The registration statement, including the attached exhibits, contains additional relevant information containedabout us. The rules and regulations of the SEC allow us to omit some information included in the Registration Statement, and reference is made to the Registration Statement for further information with respect to us and the securities we are offering. Anyregistration statement contained infrom this prospectus concerning the provisions of any document filed as an exhibit to the Registration Statement or otherwise filed with the SEC is not necessarily complete, and in each instance reference is made to the copy of the filed document.
Incorporation of certain documents by reference
prospectus.
The SEC allows us to “incorporate by reference” the information we filehave filed with them, whichthe SEC. This means that we can disclose important information to you without actually including the specific information in this prospectus by referring you to those documents. Anyother documents filed separately with the SEC. These other documents contain important information referred to in this wayabout us, our financial condition and our results of operations. The information incorporated by reference is consideredan important part of this prospectus. Information that we later provide to the SEC, and which is deemed to be “filed” with the SEC, will automatically update and supersede information contained in this prospectus fromand in the dateother documents previously filed with the SEC, and may replace information contained in this prospectus. Therefore, before you decide to invest in any securities offered by this prospectus, you should always check for, and carefully read, any reports and other documents that we file that document. Any reportsmay have filed by us with the SEC after the date of this prospectus and before the date that the offering of the securities by means of this prospectus and any supplement thereto is terminated will automatically update and, where applicable, supersede any information contained in this prospectus or incorporated by reference in this prospectus.
We incorporate by reference into this prospectus the documents listed below filed by us:
Our Annual Report on Form 10-K for the year ended December 31, 2019, filed March 5, 2020;
Our Quarterly Report on Form 10-Q for the quarterly period ended March 31, 2020, filed May 7, 2020;
Our definitive Proxy Statement on Schedule 14A, filed April 6, 2020, as amended on April 7, 2020;
Our Current Reports on Form 8-K filed January 31, 2020, March 9, 2020, May 13, 2020, and May 19, 2020 (excluding any information furnished pursuant to ItemsItem 2.02 or 7.01Item 7.01); and
The description of any reportour common stock contained in our registration statement on Form 8-K)8-A, filed May 2, 2017, including any amendment to that form or exhibit to our Annual Report on Form 10-K that we may have filed in the past, or may file in the future, for the purpose of updating the description of our common stock.
In addition, all documents listed belowfiled after the date of the filing of the registration statement of which this prospectus forms a part and any future filings madeprior to the effectiveness of the registration statement and all documents subsequently filed by us with the SEC underpursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934, until we sell allas amended (the “Exchange Act”) (excluding any information “furnished” pursuant to Item 2.02 or Item 7.01 with the securities coveredSEC on any Current Report on Form 8-K and other portions of documents that are “furnished,” but not “filed,” pursuant to applicable rules promulgated by the SEC, unless otherwise noted), prior to the completion or termination of the applicable offering under this prospectus:prospectus and the related prospectus supplement, shall be deemed to be incorporated by reference into this prospectus.
• | Our annual report on Form 10-K for the year ended December 31, 2008, filed February 27, 2009; |
• | Our quarterly report on Form 10-Q for the quarter ended March 31, 2009, filed May 7, 2009; and |
• | Our current reports on Form 8-K filed April 7, 2009, May 1, 2009, and May 15, 2009. |
We file annual, quarterly and other reports and other information with the SEC (File No. 1-8754). The SEC maintains an Internet site (http://www.sec.gov) that contains reports, proxy and information statements and other information regarding issuers that file electronically with the SEC. You may requestinspect a copy of these filingsthe registration statement through the SEC’s website. We make available free of charge on or through our Internet website, www.sbow.com, our Annual Reports on Form 10-K and Quarterly Reports on Form 10-Q and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act as soon as reasonably practicable after we electronically file such material with, or furnish it to, the SEC. Information contained on our Internet website is not a part of this prospectus and is not incorporated by reference into this prospectus (unless specifically incorporated by reference into this prospectus as described above).
You may obtain any of the documents incorporated by reference into this prospectus from the SEC through the SEC’s website at the address provided above. We will provide to each person, including any beneficial owner, to whom this prospectus is delivered a copy of any or all of the information that is incorporated by reference into this prospectus (excluding any exhibit to those documents, unless the exhibit is specifically incorporated by reference into such documents), at no cost, by visiting our Internet website at www.sbow.com, or by writing or telephoning:
calling us at the following address:
Investor Relations Department
16825 Northchase Drive,
575 North Dairy Ashford, Suite 400
1200
Houston, Texas 77060
77079
(281) 874-2700
YouIn making your investment decision, you should rely only on the information contained or incorporated by reference or provided ininto this prospectus.prospectus, the applicable prospectus supplement and any free writing prospectus relating to such offering. We have not authorized anyone else to provide you with any other information. If anyone provides you with additional, different or inconsistent information, you should not rely on it. You should not assume that the information providedcontained in this prospectus, the applicable prospectus supplement or incorporated by referenceany related free writing prospectus is accurate as of any date other than the date on the front cover of those documents. You should not assume that the information contained in the documents incorporated by reference into this prospectus, the applicable prospectus supplement or any related free writing prospectus is accurate as of any date other than the daterespective dates of the incorporated material, as applicable.those documents.
THE COMPANY
We are ana growth-oriented independent oil and natural gas company formedheadquartered in 1979,Houston, Texas. Our strategy is focused on acquiring and we are engageddeveloping assets in the exploration, development, acquisition and operation of oil and natural gas properties. Our operations are primarily focusedEagle Ford Shale located in four core areas identified as Southeast Louisiana, South Louisiana, Central Louisiana/East Texas, and South Texas. In addition,where we have a strategic growth areaassembled approximately 200,000 net acres across five operating areas. Our acreage position in three parishes in southwest Louisiana and another on acreage in the Four Corners area of southwest Colorado. South Texas is the oldesteach of our coreoperating areas with our operations first established in the AWP field in 1989is highly contiguous and subsequently expanded with the acquisition of the Sun TSH, Briscoe Ranch,designed for optimal and Las Tiendas fields during 2007 and with additional interests in the Briscoe Ranch field in 2008. Operations in our Central Louisiana/East Texas area began in mid-1998 when we acquired the Masters Creek field in Louisiana and the Brookeland field in Texas, later adding the South Bearhead Creek field in Louisiana in late 2005. The Southeast Louisiana and South Louisiana areas were established when we acquired majority interests in producing properties in the Lake Washington field in early 2001, in the Bay de Chene and Cote Blanche Island fields in December 2004, and in the Bayou Sale, Bayou Penchant, Horseshoe Bayou, and Jeanerette fields in 2006.
At December 31, 2008, we had estimated proved reserves from our continuing operations of 116.4 MMBoe. Our total proved reserves at year-end 2008 were comprised of approximately 43% crude oil, 42% natural gas, and 15% NGLs; and 53% of our total proved reserves were proved developed. At December 31, 2008, our proved reserves are concentrated with 61% of the total in Louisiana, 38% in Texas, and 1% in other states.
efficient horizontal well development.
Our executive offices are located at 16825 Northchase Drive,575 North Dairy Ashford, Suite 400,1200 Houston, Texas 77060,77079, and our telephone number is (281) 874-2700.
The subsidiary guarantorsTHE SUBSIDIARY GUARANTORS
Certain of our domestic subsidiaries, including SilverBow Resources Operating, LLC, which we refer to as the “Subsidiary Guarantors” in this prospectus, may fully and unconditionally guarantee our payment obligations under any series of debt securities offered by this prospectus. Financial information concerning our Subsidiary Guarantors and any non-guarantor subsidiaries will be included in our consolidated financial statements filed as part of our periodic reports filed pursuant to the Exchange Act to the extent required by the rules and regulations of the SEC.
An investment in theour securities involves a significant degree of risk. Before you invest in our securities you should carefully consider thethose risk factors included in our most recent Annual Report on Form 10-K, any Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K, which are incorporated herein by reference, and thethose risk factors that may be included in any applicable prospectus supplement, together with all of the other information included in this prospectus, any prospectus supplement and the documents we incorporate by reference, in evaluating an investment in our securities. If any of the risks discussed in the foregoing documents were to occur, our business, financial condition, results of operations and cash flows could be materially adversely affected. Also, please read the cautionary statement in this prospectus under “Forward-looking statements.“Forward-Looking Statements.”
Use of proceedsUSE OF PROCEEDS
Unless otherwise indicated in the applicable prospectus supplement, we intend to use the net proceeds from the sale of the securities offered by this prospectus and any prospectus supplement for our general corporate purposes, which may include, among other things, repayment of indebtedness, the financing of capital expenditures, future acquisitions and additions to our working capital. Any specific allocation of the net proceeds of an offering of securities to a specific purpose will be determined at the time of the offering and will be described in an accompanying prospectus supplement.
The following table sets forth our ratio of earnings to fixed charges:
| | | Year Ended December 31, | Three months ended March 31, | |
| | | 2004 | | | 2005 | | | 2006 | | | 2007 | | | 2008 | | 2009 | |
| Ratio of earnings to fixed charges | | 3.31 | | | 5.59 | | | 8.21 | | | 7.17 | | | * | | * | |
| | |
* | Due to the $754.3 million non-cash charge incurred in the fourth quarter of 2008, and the $79.3 million non-cash charge incurred in the first quarter of 2009, both caused by a write-down in the carrying value of oil and gas properties due to the rapid decline of oil and gas prices during those periods, 2008 earnings were insufficient to cover fixed charges by $420.8 million, and first quarter 2009 earnings were insufficient to cover fixed charges by $93.5 million. If the $754.3 million non-cash charge at year-end 2008 is excluded in calculating earnings, the ratio of earnings to fixed charges would have been 9.43 for the year ended December 31, 2008. If the $79.3 million non-cash charge is excluded in calculating earnings, the ratio of earnings to fixed charges for the quarter ended March 31, 2009, would have still been insufficient to cover fixed charges by $14.2 million. |
9
For purposes of calculating the ratio of earnings to fixed charges, fixed charges include interest expense, capitalized interest, amortization of debt issuance costs and discounts, and that portion of non-capitalized rental expense deemed to be the equivalent of interest. Earnings represents income (loss) from continuing operations before income taxes and interest expense, net, and that portion of rental expense deemed to be the equivalent of interest.
This section describes the general terms and provisions of the debt securities which may be offered by us from time to time. The applicable prospectus supplement will describe the specific terms of the debt securities offered by that prospectus supplement. Those terms of the debt securities offered by a prospectus supplement may differ significantly from the terms of the Debt Securities described in this “Description of Debt Securities.”
We may issue debt securities either separately or together with, or upon the conversion of, or in exchange for, other securities. The debt securities are towill be either our senior obligations of ours issued in onedebt securities (“Senior Debt Securities”) or more seriesour subordinated debt securities (“Subordinated Debt Securities” and referred to herein astogether with the “SeniorSenior Debt Securities,” or subordinated obligations of ours issued in one or more series and referred to herein as the “Subordinated Debt Securities.”“Debt Securities”). The Senior Debt Securities and the Subordinated Debt Securities are collectively referred to aswill be issued under separate indentures among us, the “Debt Securities.” TheSubsidiary Guarantors of such Debt Securities, willif any, and a trustee to be general obligations of the Company. Each series ofdetermined (the “Trustee”). Senior Debt Securities will be issued on terms specified in an agreement, or “Indenture,” between Swiftunder a “Senior Indenture” and an independent third party, usually a bank or trust company, known as a “Trustee,” whoSubordinated Debt Securities will be legally obligatedissued under a “Subordinated Indenture.” Together, the Senior Indenture and the Subordinated Indenture are called “Indentures.”
The Debt Securities may be issued from time to carry out thetime in one or more series. The particular terms of the Indenture. The name(s) of the Trustee(s)each series that are offered by a prospectus supplement will be set forthdescribed in the applicable prospectus supplement. We may issue all
Unless the Debt Securities underare guaranteed by our subsidiaries as described below, the same Indenture, as one or as separate series, as specified in the applicable prospectus supplement(s).
This summaryrights of certain termsSilverBow Resources and provisionsour creditors, including holders of the Debt Securities, andto participate in the assets of any subsidiary upon the latter’s liquidation or reorganization will be subject to the prior claims of the subsidiary’s creditors, except to the extent that we may be a creditor with recognized claims against such subsidiary.
We have summarized selected provisions of the Indentures below. The summary is not complete. If we refer to particular provisionsThe form of aneach Indenture has been filed with the provisions, including definitions of certain terms, are incorporated by reference as a part of this summary. The Indentures are or will be filedSEC as an exhibit to the registration statement of which this prospectus is a part, or as exhibits to documents filed underand you should read the Securities Exchange Act of 1934, which are incorporated by reference into this prospectus. The Indentures are subject to and governed by the Trust Indenture Act of 1939, as amended. You should refer to the applicable Indenture for the provisions that may be important to you.
Capitalized terms used in the summary have the meanings specified in the Indentures.
General
The Indentures will not limitprovide that Debt Securities in separate series may be issued thereunder from time to time without limitation as to aggregate principal amount. We may specify a maximum aggregate principal amount for the amountDebt Securities of any series. We will determine the terms and conditions of the Debt Securities, including the maturity, principal and interest, but those terms must be consistent with the Indenture. The Debt Securities will be our unsecured obligations.
The Subordinated Debt Securities will be subordinated in right of payment to the prior payment in full of all of our Senior Debt as described under “— Subordination of Subordinated Debt Securities” and in the prospectus supplement applicable to any Subordinated Debt Securities. If the prospectus supplement so indicates, the Debt Securities will be convertible into our common stock.
If specified in the prospectus supplement respecting a particular series of Debt Securities, SilverBow Resources Operating, LLC and any other of our future subsidiaries specified in the prospectus supplement (each a “Subsidiary Guarantor”) will fully and unconditionally guarantee (the “Subsidiary Guarantee”) that we may issue. We may issueseries as described under “— Subsidiary Guarantee” and in the prospectus supplement. Each Subsidiary Guarantee will be an unsecured obligation of the Subsidiary Guarantor. A Subsidiary Guarantee of Subordinated Debt Securities upwill be subordinated to an aggregate principal amountthe Senior Debt of the Subsidiary Guarantor on the same basis as we may authorize from time to time. The Company may establish, without the approval of existing holders ofSubordinated Debt Securities and theare subordinated to our Senior Debt.
The applicable prospectus supplement will set forth the price or prices at which the Debt Securities to be issued will be offered for sale and will describe the following terms of anysuch Debt Securities being offered, including:Securities:
• | |
| (1) | the title and aggregate principal amount;of the Debt Securities; |
• | the date(s) when principal is payable; |
• | the interest rate, if any, and the method for calculating the interest rate; |
• | the interest payment dates and the record dates for the interest payments; |
• | the places where the principal and interest will be payable; |
• | any mandatory or optional redemption or repurchase terms or prepayment, conversion, sinking fund or exchangeability or convertibility provisions; |
• (2) | whether suchthe Debt Securities will beare Senior Debt Securities or Subordinated Debt Securities and, if Subordinated Debt Securities, the related subordination provisions and the applicable definition of “Senior Indebtedness”;terms; |
• | additional provisions, if |
| (3) | whether any relating to the defeasance and covenant defeasanceSubsidiary Guarantor will provide a Subsidiary Guarantee of the Debt Securities; |
• | if other than denominations |
| (4) | any limit on the aggregate principal amount of $1,000 or multiplesthe Debt Securities; |
| |
| (5) | each date on which the principal of $1,000, the denominations the Debt Securities will be issued in;payable; |
• | |
| (6) | the interest rate that the Debt Securities will bear and the interest payment dates for the Debt Securities; |
| |
| (7) | each place where payments on the Debt Securities will be payable; |
| |
| (8) | any terms upon which the Debt Securities may be redeemed, in whole or in part, at our option; |
| |
| (9) | any sinking fund or other provisions that would obligate us to redeem or otherwise repurchase the Debt Securities; |
| |
| (10) | the portion of the principal amount, if less than all, of the Debt Securities that will be payable upon declaration of acceleration of the Maturity of the Debt Securities; |
| |
| (11) | whether the Debt Securities will be issuedare defeasible; |
| |
| (12) | any addition to or change in the formEvents of Global Securities, as defined below, or certificates;Default; |
• | |
| (13) | whether the Debt Securities are convertible into our common stock and, if so, the terms and conditions upon which conversion will be issuableeffected, including the initial conversion price or conversion rate and any adjustments thereto and the conversion period; |
| |
| (14) | any addition to or change in registered form, referred to as “Registered Securities,” orthe covenants in bearer form, referred to as “Bearer Securities” or both and, if Bearer Securities are issuable, any restrictionsthe Indenture applicable to the exchange of one form for anotherDebt Securities; and the offer, sale and delivery of Bearer Securities; |
• | |
| (15) | any applicable material federal tax consequences; |
• | the dates on which premiums, if any, will be payable; |
• | our right, if any, to defer payment of interest and the maximum length of such deferral period; |
• | any paying agents, transfer agents, registrars or trustees; |
• | any listing on a securities exchange; |
• | if convertible into common stock or preferred stock, theother terms on which such Debt Securities are convertible; |
• | the terms of any guarantee of the Debt Securities; |
• | the subordination terms, if any; |
• | the terms, if any, of the transfer, mortgage, pledge, or assignment as security for any series of Debt Securities of any properties, assets, proceeds, securities or other collateral, including whether certainnot inconsistent with the provisions of the Trust Indenture Act are applicable, and any corresponding changes to provisions of the Indenture as currently in effect;Indenture. |
Debt Securities, including any Debt Securities that provide for an amount less than the principal amount thereof to be due and payable upon a declaration of acceleration of the Maturity thereof (“Original Issue Discount Securities”), may be sold at a substantial discount below their principal amount. Special United States federal income tax considerations applicable to Debt Securities sold at an original issue discount may be described in the applicable prospectus supplement. In addition, special United States federal income tax or other considerations applicable to any Debt Securities that are denominated in a currency or currency unit other than United States dollars may be described in the applicable prospectus supplement.
• | the initial offering price; and |
• | other specific terms, including covenants and any additions or changes to the events of default provided for with respect to the Debt Securities. |
Subordination of Subordinated Debt Securities
The termsindebtedness evidenced by the Subordinated Debt Securities will, to the extent set forth in the Subordinated Indenture with respect to each series of Subordinated Debt Securities, be subordinated in right of payment to the prior payment in full of all of our Senior Debt, including the Senior Debt Securities, and it may also be senior in right of payment to all of our Subordinated Debt. The prospectus supplement relating to any Subordinated Debt Securities will summarize the subordination provisions of the Subordinated Indenture applicable to that series including:
the applicability and effect of such provisions upon any payment or distribution respecting that series following any liquidation, dissolution or other winding-up, or any assignment for the benefit of creditors or other marshalling of assets or any bankruptcy, insolvency or similar proceedings;
the applicability and effect of such provisions in the event of specified defaults with respect to any Senior Debt, including the circumstances under which and the periods during which we will be prohibited from making payments on the Subordinated Debt Securities; and
the definition of Senior Debt applicable to the Subordinated Debt Securities of that series and, if the series is issued on a senior subordinated basis, the definition of Subordinated Debt applicable to that series.
The prospectus supplement will also describe as of a recent date the approximate amount of Senior Debt to which the Subordinated Debt Securities of that series will be subordinated.
The failure to make any payment on any of the Subordinated Debt Securities by reason of the subordination provisions of the Subordinated Indenture described in the prospectus supplement will not be construed as preventing the occurrence of an Event of Default with respect to the Subordinated Debt Securities arising from any such failure to make payment.
The subordination provisions described above will not be applicable to payments in respect of the Subordinated Debt Securities from a defeasance trust established in connection with any legal defeasance or covenant defeasance of the Subordinated Debt Securities as described under “— Legal Defeasance and Covenant Defeasance.”
Subsidiary Guarantee
If specified in the prospectus supplement, one or more of the Subsidiary Guarantors will guarantee the Debt Securities of any series may differ and, withouta series. Unless otherwise indicated in the consentprospectus supplement, the following provisions will apply to the Subsidiary Guarantee of the holdersSubsidiary Guarantor.
Subject to the limitations described below and in the prospectus supplement, one or more of the Subsidiary Guarantors will jointly and severally, fully and unconditionally guarantee the punctual payment when due, whether at Stated Maturity, by acceleration or otherwise, of all our payment obligations under the Indentures and the Debt Securities of a series, whether for principal of, premium, if any, series, we may reopen a previous series ofor interest on the Debt Securities or otherwise. The Subsidiary Guarantors will also pay all expenses (including reasonable counsel fees and issue additional Debt Securities of such series or establish additional terms of such series, unless otherwise indicated inexpenses) incurred by the applicable prospectus supplement or supplemental indenture.Trustee in enforcing any rights under a Subsidiary Guarantee with respect to a Subsidiary Guarantor.
RankingIn the case of Debt Securities
The Senior Debt Securities will be our senior unsecured obligations and will rank equal in right of payment with all of our existing and future senior unsecured indebtedness. The Senior Debt Securities may be guaranteed on a senior unsecured basis by all of our material existing and future domestic subsidiaries. The guarantees will rank equal in right of payment with all existing and future senior unsecured indebtedness of any subsidiary guarantors. The notes and the guarantees will be effectively subordinated to any existing or future secured indebtedness to the extent of the value of the collateral securing such indebtedness.
The Subordinated Debt Securities, will be obligations of ours anda Subsidiary Guarantor’s Subsidiary Guarantee will be subordinated in right of payment to all existing and futurethe Senior Indebtedness. The prospectus supplement will define senior indebtedness and will set forth the approximate amountDebt of such senior indebtedness outstandingSubsidiary Guarantor on the same basis as of a recent date. The prospectus supplementthe Subordinated Debt Securities are subordinated to our Senior Debt. No payment will also describebe made by any Subsidiary Guarantor under its Subsidiary Guarantee during any period in which payments by us on the Subordinated Debt Securities are suspended by the subordination provisions of the Subordinated Debt Securities.Indenture.
Each Subsidiary Guarantee will be limited in amount to an amount not to exceed the maximum amount that can be guaranteed by the relevant Subsidiary Guarantor without rendering such Subsidiary Guarantee voidable under applicable law relating to fraudulent conveyance or fraudulent transfer or similar laws affecting the rights of creditors generally.
Each Subsidiary Guarantee will be a continuing guarantee and will:
| |
| (1) | remain in full force and effect until either (a) payment in full of all the applicable Debt Securities (or such Debt Securities are otherwise satisfied and discharged in accordance with the provisions of the applicable Indenture) or (b) released as described in the following paragraph; |
| |
| (2) | be binding upon each Subsidiary Guarantor; and |
| |
| (3) | inure to the benefit of and be enforceable by the applicable Trustee, the Holders and their successors, transferees and assigns. |
Covenants
UnderIn the Indentures, weevent that (1) a Subsidiary Guarantor ceases to be a Subsidiary, (2) either legal defeasance or covenant defeasance occurs with respect to the series or (3) all or substantially all of the assets or all of the Capital Stock of such Subsidiary Guarantor is sold, including by way of sale, merger, consolidation or otherwise, such Subsidiary Guarantor will be released and discharged of its obligations under its Subsidiary Guarantee without any further action required on the part of the Trustee or any Holder, and no other Person acquiring or owning the assets or Capital Stock of such Subsidiary Guarantor will be required to:to enter into a Subsidiary Guarantee. In addition, the prospectus supplement may specify additional circumstances under which a Subsidiary Guarantor can be released from its Subsidiary Guarantee.
• | pay the principal, interest and any premium on the Debt Securities when due; |
12
• | maintain a place of payment; |
Form, Exchange and Transfer
• | deliver a report to the Trustee at the end of each fiscal year reviewing our obligations under the Indentures; and |
• | deposit sufficient funds with any paying agent on or before the due date for any principal, interest or any premium. |
Any additional covenantsThe Debt Securities of each series will be describedissuable only in fully registered form, without coupons, and, unless otherwise specified in the applicable prospectus supplement.
Registration, Transfer, Payment and Paying Agent
Unless otherwise indicated in a prospectus supplement, each series of Debt Securities will be issued in registered form only without coupons. The Indentures, however, provide that we may also issue Debt Securities in bearer form only, or in both registered and bearer form. Bearer Securities shall not be offered, sold, resold or delivered in connection with their original issuance in the United States or to any United States person other than offices located outside the United States of certain United States financial institutions. “United States person” means any citizen or resident of the United States, any corporation, partnership or other entity created or organized in or under the laws of the United States, any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust whose administration is subject to the primary supervision of a United States court and which has one or more United States fiduciaries who have the authority to control all substantial decisions of the trust. “United States” means the United States of America (including the states thereof and the District of Columbia), its territories, its possessions and other areas subject to its jurisdiction. Purchasers of Bearer Securities will be subject to certification procedures and may be affected by certain limitations under United States tax laws. Such procedures and limitations will be described in the prospectus supplement relating to the offering of the Bearer Securities.
Unless otherwise indicated in a prospectus supplement, Registered Securities will be issued in denominations of $1,000 or anyand integral multiple thereof,multiples thereof.
At the option of the Holder, subject to the terms of the applicable Indenture and Bearerthe limitations applicable to Global Securities, Debt Securities of each series will be issued in denominations of $5,000.
Unless otherwise indicated in a prospectus supplement, the principal, premium, if any, and interest, if any, of or on theexchangeable for other Debt Securities will be payable,of the same series of any authorized denomination and of a like tenor and aggregate principal amount.
Subject to the terms of the applicable Indenture and the limitations applicable to Global Securities, Debt Securities may be surrenderedpresented for exchange as provided above or for registration of transfer (duly endorsed or exchange,with the form of transfer endorsed thereon duly executed) at anthe office of the Security Registrar or agency to be maintainedat the office of any transfer agent designated by us in the Borough of Manhattan, The City of New York, provided that payments of interest with respect to any Registered Security may be made at our option by check mailed to the address of the person entitled to payment or by transfer to an account maintained by the payee with a bank located in the United States.for such purpose. No service charge shallwill be made for any registration of transfer or exchange of Debt Securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in that connection. Such transfer or exchange will be effected upon the Security Registrar or such transfer agent, as the case may be, being satisfied with the documents of title and identity of the Person making the request. The Security Registrar and any other expensestransfer agent initially designated by us for any Debt Securities will be named in the applicable prospectus supplement. We may at any time designate additional transfer agents or rescind the designation of any transfer agent or approve a change in the office through which any transfer agent acts, except that we will be required to maintain a transfer agent in each Place of Payment for the Debt Securities of each series.
If the Debt Securities of any series (or of any series and specified tenor) are to be redeemed in part, we will not be required to (1) issue, register the transfer of or exchange any Debt Security of that series (or of that series and specified tenor, as the case may be) during a period beginning at the opening of business 15 days before the day of mailing of a notice of redemption of any such Debt Security that may be imposedselected for redemption and ending at the close of business on the day of such mailing or (2) register the transfer of or exchange any Debt Security so selected for redemption, in whole or in part, except the unredeemed portion of any such Debt Security being redeemed in part.
Global Securities
Some or all of the Debt Securities of any series may be represented, in whole or in part, by one or more Global Securities that will have an aggregate principal amount equal to that of the Debt Securities they represent. Each Global Security will be registered in the name of a Depositary or its nominee identified in the applicable prospectus supplement, will be deposited with such Depositary or nominee or its custodian and will bear a legend regarding the restrictions on exchanges and registration of transfer thereof referred to below and any such other matters as may be provided for pursuant to the applicable Indenture.
Notwithstanding any provision of the Indentures or any Debt Security described in this prospectus, no Global Security may be exchanged in whole or in part for Debt Securities registered, and no transfer of a Global Security in whole or in part may be registered, in the name of any Person other than the Depositary for such Global Security or any nominee of such Depositary unless:
| |
| (1) | the Depositary has notified us that it is unwilling or unable to continue as Depositary for such Global Security or has ceased to be qualified to act as such as required by the applicable Indenture, and in either case we fail to appoint a successor Depositary within 90 days; |
| |
| (2) | an Event of Default with respect to the Debt Securities represented by such Global Security has occurred and is continuing and the Trustee has received a written request from the Depositary to issue certificated Debt Securities; |
| |
| (3) | subject to the rules of the Depositary, we shall have elected to terminate the book-entry system through the Depositary; or |
| |
| (4) | other circumstances exist, in addition to or in lieu of those described above, as may be described in the applicable prospectus supplement. |
All certificated Debt Securities issued in exchange for a Global Security or any portion thereof will be registered in such names as the Depositary may direct.
As long as the Depositary, or its nominee, is the registered holder of a Global Security, the Depositary or such nominee, as the case may be, will be considered the sole owner and Holder of such Global Security and the Debt Securities that it represents for all purposes under the Debt Securities and the applicable Indenture. Except in the limited circumstances referred to above, owners of beneficial interests in a Global Security will not be entitled to have such Global Security or any Debt Securities that it represents registered in their names, will not receive or be entitled to receive physical delivery of certificated Debt Securities in exchange for those interests and will not be considered to be the owners or Holders of such Global Security or any Debt Securities that is represents for any purpose under the Debt Securities or the applicable Indenture. All payments on a Global Security will be made to the Depositary or its nominee, as the case may be, as the Holder of the security. The laws of some jurisdictions may require that some purchasers of Debt Securities take physical delivery of such Debt Securities in certificated form. These laws may impair the ability to transfer beneficial interests in a Global Security.
Ownership of beneficial interests in a Global Security will be limited to institutions that have accounts with the Depositary or its nominee (“participants”) and to Persons that may hold beneficial interests through participants. In connection with the exchange or transfer.
Unless otherwise indicatedissuance of any Global Security, the Depositary will credit, on its book-entry registration and transfer system, the respective principal amounts of Debt Securities represented by the Global Security to the accounts of its participants. Ownership of beneficial interests in a prospectus supplement, payment of principal of, premium, if any, and interest, if any, on Bearer SecuritiesGlobal Security will be made,shown only on, and the transfer of those ownership interests will be effected only through, records maintained by the Depositary (with respect to participants’ interests) or any such participant (with respect to interests of Persons held by such participants on their behalf). Payments, transfers, exchanges and other matters relating to beneficial interests in a Global Security may be subject to any applicable lawsvarious policies and regulations, at such office or agency outsideprocedures adopted by the United States as specified in the prospectus supplement and as we may designateDepositary from time to time. Unless otherwise indicatedNone of us, the Subsidiary Guarantors, the Trustees or the agents of us, the Subsidiary Guarantors or the Trustees will have any responsibility or liability for any aspect of the Depositary’s or any participant’s records relating to, or for payments made on account of, beneficial interests in a prospectus supplement, payment of interest due on Bearer Securities onGlobal Security, or for maintaining, supervising or reviewing any interest payment date will be made only against surrender of the couponrecords relating to such interest payment date. Unless otherwise indicated in a prospectus supplement, no payment of principal, premium or interest with respect to any Bearer Security will be made at any office or agency in the United States or by check mailed to any address in the United States or by transfer to an account maintained with a bank located in the United States; except that if amounts owing with respect to any Bearer Securities shall be payable in U.S. dollars, payment may be made at the Corporate Trust Office of the applicable Trustee or at any office or agency designated by us in the Borough of Manhattan, The City of New York, if (but only if) payment of the full amount of such principal, premium or interest at all offices outside of the United States maintained for such purpose by us is illegal or effectively precluded by exchange controls or similar restrictions.beneficial interests.
Payment and Paying Agents
Unless otherwise indicated in the applicable prospectus supplement, wepayment of interest on a Debt Security on any Interest Payment Date will not be required to:
• | issue, register the transfer of or exchange Debt Securities of any series during a period beginning at the opening of business 15 days before any selection of Debt Securities of that series of like tenor to be redeemed and endingmade to the Person in whose name such Debt Security (or one or more Predecessor Securities) is registered at the close of business on the Regular Record Date for such interest.Unless otherwise indicated in the applicable prospectus supplement, principal of and any premium and interest on the day of that selection; |
• | register the transfer of or exchange any Registered Security, or portion thereof, called for redemption, except the unredeemed portion of any Registered Security being redeemed in part; |
• | exchange any Bearer Security called for redemption, except to exchange such Bearer Security for a Registered Security of that series and like tenor that is simultaneously surrendered for redemption; or |
• | issue, register the transfer of or exchange any Debt Security which has been surrendered for repayment at the option of the holder, except the portion, if any, of the Debt Security not to be so repaid. |
Original Issue Discount Securities
Debt Securities of a particular series will be payable at the office of such Paying Agent or Paying Agents as we may designate for such purpose from time to time, except that at our option payment of any interest on Debt Securities in certificated form may be issuedmade by check mailed to the address of the Person entitled thereto as “Original Issue Discount Securities”such address appears in the Security Register. Unless otherwise indicated in the applicable prospectus supplement, the corporate trust office of the Trustee under the Senior Indenture in The City of New York will be designated as sole Paying Agent for payments with respect to Senior Debt Securities of each series, and the corporate trust office of the Trustee under the Subordinated Indenture in The City of New York will be sold at a discount below their principal amount. Original Issue Discountdesignated as the sole Paying Agent for payment with respect to Subordinated Debt Securities may include “zero coupon” securities that do not pay any cash interestof each series. Any other Paying Agents initially designated by us for the entire termDebt Securities of the securities. In the event of an acceleration of the maturity of any Original Issue Discount Security, the amount payable to the holder thereof upon such accelerationa particular series will be determined in the manner describednamed in the applicable prospectus supplement. Conditions pursuantWe may at any time designate additional Paying Agents or rescind the designation of any Paying Agent or approve a change in the office through which any Paying Agent acts, except that we will be required to whichmaintain a Paying Agent in each Place of Payment for the Debt Securities of a particular series.
All money paid by us to a Paying Agent for the payment of the principal of or any premium or interest on any Debt Security which remains unclaimed at the Subordinated Debt Securities may be acceleratedend of two years after such principal, premium or interest has become
due and payable will be set forth inrepaid to us, and the applicable prospectus supplement. Material federal income tax and other considerations applicable to Original Issue Discount Securities will be described in the applicable prospectus supplement.
Non U.S. Currency
If the purchase priceHolder of any Debt Securities is payable in a currency other than U.S. dollars or if principal of, or premium, if any, or interest, if any, on any of the Debt Securities is payable in any currency other than U.S. dollars, the specific terms with respect to such Debt Securities and such foreign currency will be specified in the applicable prospectus supplement.
Global Securities
The Debt Securities of a seriesSecurity thereafter may be issued in whole or in part in the form of one or more global securities that will be deposited with, or on behalf of, a “Depositary” identified in the prospectus supplement relatinglook only to such series. Global Debt Securities may be issued in either registered or bearer form and in either temporary or permanent form. Unless and until it is exchanged in whole or in partus for individual certificates evidencing Debt Securities, a Global Debt Security may not be transferred except as a whole:
• | by the Depositary to a nominee of such Depositary; |
• | by a nominee of such Depositary to such Depositary or another nominee of such Depositary; or |
• | by such Depositary or any such nominee to a successor of such Depositary or a nominee of such successor. |
The specific terms of the depositary arrangement with respect to a series of Global Debt Securities and certain limitations and restrictions relating to a series of Global Bearer Securities will be described in the applicable prospectus supplement.
Redemption and Repurchase
The Debt Securities may be redeemable, in whole or in part, at our option, may be subject to mandatory redemption pursuant to a sinking fund or otherwise, or may be subject to repurchase by Swift at the option of the holders, in each case upon the terms, at the times and at the prices set forth in the applicable prospectus supplement.
Conversion and Exchange
The terms, if any, on which Debt Securities of any series are convertible into or exchangeable for common stock, preferred stock, or other Debt Securities will be set forth in the applicable prospectus supplement. Such terms will include provisions as to whether conversion or exchange is mandatory, at the option of the holder, or at our option, the conversion price and the conversion period, and may include provisions pursuant to which the number of shares of our common stock or other securities to be received by the holders of such series of Debt Securities would be subject to adjustment..
payment.
Consolidation, Merger and Sale of Assets
Each Indenture generally will permit a consolidationUnless otherwise specified in the prospectus supplement, we may not consolidate with or merger between us and another corporation, if the surviving corporation meets certain limitations and conditions. Subject to those conditions, each Indenture may also permit the sale by usmerge into, or transfer, lease or otherwise dispose of all or substantially all of our propertyassets to, any Person (a “Successor Person”), and assets. If this happens, the remaining or acquiring corporation shall assume all of our responsibilities and liabilities under the Indentures including the payment of all amounts due on the Debt Securities and performance of the covenants in the Indentures.
We are only permittedmay not permit any Person to consolidate with or merge with or into any other corporation or sell all or substantially all of our assets according to the terms and conditions of the Indentures, as indicated in the applicable prospectus supplement. us, unless:
| |
| (1) | the Successor Person (if not us) is a corporation, partnership, trust or other entity organized and validly existing under the laws of any domestic jurisdiction and assumes our obligations with respect to the Debt Securities and under the Indentures; |
| |
| (2) | immediately before and after giving pro forma effect to the transaction, no Event of Default, and no event which, after notice or lapse of time or both, would become an Event of Default, has occurred and is continuing; and |
| |
| (3) | several other conditions, including any additional conditions with respect to any particular Debt Securities specified in the applicable prospectus supplement, are met. |
The remaining or acquiring corporationSuccessor Person (if not us) will be substituted for us inunder the Indenturesapplicable Indenture with the same effect as if it had been an original party to such Indenture, and, except in the Indenture. Thereafter,case of a lease, we will be relieved from any further obligations under such Indenture and the successor corporation may exercise our rights and powers under any Indenture, in our name or in its own name. Any act or proceeding required or permitted to be done by our board of directors or any of our officers may be done by the board or officers of the successor corporation.
Debt Securities.
Events of Default
Unless otherwise specified in the applicable prospectus supplement, each of the following will constitute an Event of Default as defined inunder the Indentures and applicable Indenture with respect to Debt Securities issuedof any series:
| |
| (1) | failure to pay principal of or any premium on any Debt Security of that series when due, whether or not, in the case of Subordinated Debt Securities, such payment is prohibited by the subordination provisions of the Subordinated Indenture; |
| |
| (2) | failure to pay any interest on any Debt Securities of that series when due, continued for 30 days, whether or not, in the case of Subordinated Debt Securities, such payment is prohibited by the subordination provisions of the Subordinated Indenture; |
| |
| (3) | failure to deposit any sinking fund payment, when due, in respect of any Debt Security of that series, whether or not, in the case of Subordinated Debt Securities, such deposit is prohibited by the subordination provisions of the Subordinated Indenture; |
| |
| (4) | failure to perform or comply with the provisions described under “— Consolidation, Merger and Sale of Assets”; |
| |
| (5) | failure to perform any of our other covenants in such Indenture (other than a covenant included in such Indenture solely for the benefit of a series other than that series) continued for 60 days after written notice has been given by the applicable Trustee, or the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series, as provided in such Indenture; |
| |
| (6) | any Debt of us, any Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the series, such Subsidiary Guarantor, is not paid within any applicable grace period after final maturity or is accelerated by its holders because of a default and the total amount of such Debt unpaid or accelerated exceeds $25.0 million; |
| |
| (7) | any judgment or decree for the payment of money in excess of $25.0 million is entered against us, any Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the series, such Subsidiary Guarantor, |
remains outstanding for a period of 60 consecutive days following entry of such Indentures, typically will occurjudgment and is not discharged, waived or stayed;
| |
| (8) | certain events of bankruptcy, insolvency or reorganization affecting us, any Significant Subsidiary or, if a Subsidiary Guarantor has guaranteed the series, such Subsidiary Guarantor; and |
| |
| (9) | if any Subsidiary Guarantor has guaranteed such series, the Subsidiary Guarantee of any such Subsidiary Guarantor is held by a final non-appealable order or judgment of a court of competent jurisdiction to be unenforceable or invalid or ceases for any reason to be in full force and effect (other than in accordance with the terms of the applicable Indenture) or any Subsidiary Guarantor or any Person acting on behalf of any Subsidiary Guarantor denies or disaffirms such Subsidiary Guarantor’s obligations under its Subsidiary Guarantee (other than by reason of a release of such Subsidiary Guarantor from its Subsidiary Guarantee in accordance with the terms of the applicable Indenture). |
If an Event of Default (other than an Event of Default with respect to SilverBow Resources described in clause (8) above) with respect to the Debt Securities of any series underat the time Outstanding occurs and is continuing, either the applicable Trustee or the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series by notice as provided in the Indenture upon:
• | default for a period to be specified inmay declare the applicable prospectus supplement in payment of any interest with respect to any Debt Security of such series; |
• | default in payment of principal or any premium with respect to any Debt Security of such series when due upon maturity, redemption, repurchase at the option of the holder or otherwise; |
• | default in deposit of any sinking fund payment when due with respect to any Debt Security of such series; |
• | default by us in the performance, or breach, of any other covenant or warranty in such Indenture, which shall not have been remedied for a period to be specified in the applicable prospectus supplement after notice to us by the applicable Trustee or the holders of not less than a fixed percentage in aggregate principal amount of the Debt Securities of all series issued under the applicable Indenture; |
• | certain events of bankruptcy, insolvency or reorganization of Swift; or |
• | any other Event of Default that may be set forth in the applicable prospectus supplement, including an Event of Default based on other debt being accelerated, known as a “cross-acceleration.” |
No Event of Default with respect to any particular series of Debt Securities necessarily constitutesof that series (or, in the case of any Debt Security that is an Original Issue Discount Debt Security, such portion of the principal amount of such Debt Security as may be specified in the terms of such Debt Security) to be due and payable immediately, together with any accrued and unpaid interest thereon. If an Event of Default with respect to any other series of Debt Securities. If the Trustee considers itSilverBow Resources described in the interest of the holders to do so, the Trustee under an Indenture may withhold notice of the occurrence of a defaultclause (8) above with respect to the Debt Securities to the holders of any series outstanding, except a default in payment of principal, premium, if any, interest, if any.
Each Indenture will provide that if an Event of Default with respect to any series of Debt Securities issued thereunder shall have occurred and be continuing, eitherat the relevant Trustee or the holders of at least a fixed percentage in principal amount of the Debt Securities of such series then outstanding may declaretime Outstanding occurs, the principal amount of all the Debt Securities of that series (or, in the case of any such series to beOriginal Issue Discount Security, such specified amount) will automatically, and without any action by the applicable Trustee or any Holder, become immediately due and payable, immediately. In the case of Original Issue Discount Securities, the Trustee may declare as duetogether with any accrued and payableunpaid interest thereon. After any such lesser amount as may be specified in the applicable prospectus supplement. However, upon certain conditions, such declarationacceleration and its consequences, may be rescinded and annulled bybut before a judgment or decree based on acceleration, the holdersHolders of at least a fixed percentagemajority in principal amount of the Outstanding Debt Securities of that series may, under certain circumstances, rescind and annul such acceleration if all Events of Default with respect to that series, issued underother than the non-payment of accelerated principal (or other specified amount), have been cured or waived as provided in the applicable Indenture. For information as to waiver of defaults, see “— Modification and Waiver” below.
The applicable prospectus supplement will provide the terms pursuant to which an Event of Default shall result in acceleration of the payment of principal of Subordinated Debt Securities.
In the case of a default in the payment of principal of, or premium, if any, or interest, if any, on any Subordinated Debt Securities of any series, the applicable Trustee, subject to certain limitations and conditions, may institute a judicial proceeding for the collection thereof.
No holder of any of the Debt Securities of any series will have any right to institute any proceeding with respect to the Indenture or any remedy thereunder, unless the holders of at least a fixed percentage in principal amount of the outstanding Debt Securities of such series:
• | have made written request to the Trustee to institute such proceeding as Trustee, and offered reasonable indemnity to the Trustee, |
• | the Trustee has failed to institute such proceeding within the time period specified in the applicable prospectus supplement after receipt of such notice, and |
• | the Trustee has not within such period received directions inconsistent with such written request by holders of a majority in principal amount of the outstanding Debt Securities of such series. Such limitations do not apply, however, to a suit instituted by a holder of a Debt Security for the enforcement of the payment of the principal of, premium, if any, or any accrued and unpaid interest on, the Debt Security on or after the respective due dates expressed in the Debt Security. |
During the existence of an Event of Default under an Indenture, the Trustee is required to exercise such rights and powers vested in it under the Indenture and use the same degree of care and skill in its exercise thereof as a prudent person would exercise under the circumstances in the conduct of such person’s own affairs. Subject to the provisions of the IndentureIndentures relating to the duties of the Trustee, ifTrustees in case an Event of Default shall occurhas occurred and is continuing, no Trustee will be continuing, the Trustee is under noany obligation to exercise any of its rights or powers under the applicable Indenture at the request or direction of any of the holders,Holders, unless such holders shallHolders have offered to thesuch Trustee reasonable security or indemnity. Subject to certainsuch provisions concerningfor the rightsindemnification of the Trustee,Trustees, the holdersHolders of at least a fixed percentagemajority in principal amount of the outstandingOutstanding Debt Securities of any series will have the right to direct the time, method and place of conducting any proceeding for any remedy available to thesuch Trustee or exercising any trust or power conferred on the Trustee with respect to suchthe Debt Securities of that series.
No Holder of a Debt Security of any series will have any right to institute any proceeding with respect to the applicable Indenture, or for the appointment of a receiver or a trustee, or for any other remedy thereunder, unless:
| |
| (1) | such Holder has previously given to the Trustee under the applicable Indenture written notice of a continuing Event of Default with respect to the Debt Securities of that series; |
| |
| (2) | the Holders of at least 25% in principal amount of the Outstanding Debt Securities of that series have made written request, and such Holder or Holders have offered reasonable security or indemnity, to the Trustee to institute such proceeding as trustee; and |
| |
| (3) | the Trustee has failed to institute such proceeding, and has not received from the Holders of a majority in principal amount of the Outstanding Debt Securities of that series a direction inconsistent with such request, within 60 days after such notice, request and offer. |
The Indentures provide that16
However, such limitations do not apply to a suit instituted by a Holder of a Debt Security for the Trustee will, withinenforcement of payment of the time periodprincipal of or any premium or interest on such Debt Security on or after the applicable due date specified in such Debt Security or, if applicable, to convert such Debt Security.
We will be required to furnish to each Trustee annually a statement by certain of our officers, to their knowledge, as to whether or not we are in default in the performance or observance of any of the terms, provisions and conditions of the applicable prospectus supplement afterIndenture and, if so, specifying all such known defaults.
Modification and Waiver
We may modify or amend an Indenture without the occurrenceconsent of any default, give to the holders of the Debt Securities of such series notice of such default known to it, unless such default shall have been cured or waived; provided that the Trustee shall be protected in withholding such notice if it determines in good faith that the withholding of such notice is in the interest of such holders, except in the case of a default in payment of principal of or premium, if any, on any Debt Security of such series when due or in the case of any default in the payment of any interest on the Debt Securities of such series.
Swift is required to furnish to the Trustee annually a statement as to compliance with all conditions and covenants under the Indentures.
Modification and Waivers
From time to time, when authorized by resolutions of our board of directors and by the Trustee, without the consent of the holders of Debt Securities of any series, we may amend, waive or supplement the Indentures and the Debt Securities of such series for certain specified purposes, including, among other things:circumstances, including:
• | |
| (1) | to cure ambiguities, defectsevidence the succession under the Indenture of another Person to us or inconsistencies;any Subsidiary Guarantor and to provide for its assumption of our or such Subsidiary Guarantor’s obligations to holders of Debt Securities; |
• | |
| (2) | to make any changes that would add any additional covenants of us or the Subsidiary Guarantors for the benefit of the holders of Debt Securities or that do not adversely affect the rights under the Indenture of the Holders of Debt Securities in any material respect; |
| |
| (3) | to add any additional Events of Default; |
| |
| (4) | to provide for the assumptionuncertificated notes in addition to or in place of our obligations certificated notes; |
| |
| (5) | to holders ofsecure the Debt Securities of such series in the case of a merger or consolidation; |
• | to add to our Events of Default or our covenants or to make any change that would provide any additional rights or benefits to the holders of the Debt Securities of such series; |
• | to add or change any provisions of such Indenture to facilitate the issuance of Bearer Securities; |
• | |
| (6) | to establish the form or terms of Debt Securities of any series and any related coupons;of Debt Securities; |
• | |
| (7) | to evidence and provide for the acceptance of appointment under the Indenture of a successor Trustee; |
| |
| (8) | to cure any ambiguity, defect or inconsistency; |
| |
| (9) | to add guarantors with respect to the Debt Securities of such series; |
• | to secure the Debt Securities of such series; |
• | to maintain the qualification of the Indenture under the Trust Indenture Act;Subsidiary Guarantors; or |
• | |
| (10) | in the case of any Subordinated Debt Security, to make any change in the subordination provisions that does not adversely affectlimits or terminates the rightsbenefits applicable to any Holder of any holder.Senior Debt. |
Other modifications and amendments and modifications of the Indentures or the Debt Securities issued thereunderan Indenture may be made by Swiftus, the Subsidiary Guarantors, if applicable, and the applicable Trustee with the consent of the holdersHolders of not less than a fixed percentage of the aggregatemajority in principal amount of the outstandingOutstanding Debt Securities of each series affected with each series voting as a separate class;by such modification or amendment; provided, however, that no such modification or amendment may, without the consent of the holderHolder of each outstandingOutstanding Debt Security affected no such modification or amendment may:thereby:
• | |
| (1) | change the Stated Maturity of the principal of, or any installment of principal of or interest on, any Debt Security; |
| |
| (2) | reduce the principal amount of, or extend the fixed maturity of theany premium or interest on, any Debt Securities, or alter or waive any redemption, repurchase or sinking fund provisions of the Debt Securities;Security; |
• | |
| (3) | reduce the amount of principal of anyan Original Issue Discount Securities that would be due andSecurity or any other Debt Security payable upon an acceleration of the maturityMaturity thereof; |
• | |
| (4) | change the place or currency in which any Debt Securitiesof payment of principal of, or any premium or the accrued interest thereon is payable;on, any Debt Security; |
• | reduce the percentage in principal amount outstanding of Debt Securities of any series which must consent to an amendment, supplement or waiver or consent to take any action under the Indenture or the Debt Securities of such series; |
• (5) | impair the right to institute suit for the enforcement of any payment due on or any conversion right with respect to theany Debt Securities;Security; |
• | waive a default in payment with respect to |
| (6) | modify the Debt Securities or any guarantee; |
• | reduce the rate or extend the time for payment of interest on the Debt Securities; |
• | adversely affect the ranking of the Debt Securities of any series; |
• | release any guarantor from any of its obligations under its guarantee or the Indenture, except in compliance with the terms of the Indenture; or |
• | solelysubordination provisions in the case of a series of Subordinated Debt Securities, or modify any of the applicable subordinationconversion provisions, or the applicable definition of Senior Indebtednessin either case in a manner adverse to any holders.the Holders of the Subordinated Debt Securities; |
| |
| (7) | except as provided in the applicable Indenture, release the Subsidiary Guarantee of a Subsidiary Guarantor; |
| |
| (8) | reduce the percentage in principal amount of Outstanding Debt Securities of any series, the consent of whose Holders is required for modification or amendment of the Indenture; |
| |
| (9) | reduce the percentage in principal amount of Outstanding Debt Securities of any series necessary for waiver of compliance with certain provisions of the Indenture or for waiver of certain defaults; |
| |
| (10) | modify such provisions with respect to modification, amendment or waiver; or |
| |
| (11) | following the making of an offer to purchase Debt Securities from any Holder that has been made pursuant to a covenant in such Indenture, modify such covenant in a manner adverse to such Holder. |
The holdersHolders of a fixed percentagemajority in aggregate principal amount of the outstandingOutstanding Debt Securities of any series may waive compliance by us with certain restrictive provisions of the relevant Indenture, including any set forth in the applicable prospectus supplement.Indenture. The holdersHolders of a fixed percentagemajority in aggregate principal amount of the outstandingOutstanding Debt Securities of any series may on behalf of the holders of that series, waive any past default under the applicable Indenture, with respect to that series and its consequences, except a default in the payment of the principal, of, or premium if any, or interest if any, on any Debt Securitiesand certain covenants and provisions of such series, or in respect of a covenant or provisionthe Indenture which cannot be modified or amended without the consent of a larger fixed percentage of holders or by the holderHolder of each outstandingOutstanding Debt SecuritiesSecurity of such series.
Each of the series affected.
Outstanding Debt Securities
InIndentures provides that in determining whether the holdersHolders of the requisite principal amount of outstandingthe Outstanding Debt Securities have given or taken any authorization, demand, direction, notice, consent, waiver or waiverother action under the relevantsuch Indenture the amountas of outstanding Debt Securities will be calculated based on the following:any date:
• | the portion of |
| (1) | the principal amount of an Original Issue Discount Security that shallwill be deemed to be outstanding for such purposes shallOutstanding will be that portionthe amount of the principal amount thereof that could be declared towould be due and payable upon a declaration of acceleration pursuant to the termsas of such Original Issue Discount Securitydate upon acceleration of maturity to such date; |
| |
| (2) | if, as of such date, the dateprincipal amount payable at the Stated Maturity of a Debt Security is not determinable (for example, because it is based on an index), the principal amount of such determination;Debt Security deemed to be Outstanding as of such date will be an amount determined in the manner prescribed for such Debt Security; |
• | |
| (3) | the principal amount of a Debt Security denominated in aone or more foreign currencies or currency other than U.S. dollars shallunits that will be deemed to be Outstanding will be the U.S.United States dollar equivalent, determined onas of such date in the date of original issue ofmanner prescribed for such Debt Security, of the principal amount of such Debt Security;Security (or, in the case of a Debt Security described in clause (1) or (2) above, of the amount described in such clause); and |
• | any |
| (4) | certain Debt SecuritySecurities, including those owned by us, any Subsidiary Guarantor or any obligorof our other Affiliates, will not be deemed to be Outstanding. |
Except in certain limited circumstances, we will be entitled to set any day as a record date for the purpose of determining the Holders of Outstanding Debt Securities of any series entitled to give or take any direction, notice, consent, waiver or other action under the applicable Indenture, in the manner and subject to the limitations provided in the Indenture. In certain limited circumstances, the Trustee will be entitled to set a record date for action by Holders. If a record date is set for any action to be taken by Holders of a particular series, only Persons who are Holders of Outstanding Debt Securities of that series on the record date may take such action. To be effective, such action must be taken by Holders of the requisite principal amount of such Debt Securities within a specified period following the record date. For any particular record date, this period will be 180 days or such other period as may be specified by us (or the Trustee, if it set the record date), and may be shortened or lengthened (but not beyond 180 days) from time to time.
Satisfaction and Discharge
Each Indenture will be discharged and will cease to be of further effect as to all outstanding Debt Securities of any series issued thereunder, when:
| |
| (a) | all outstanding Debt Securities of that series that have been authenticated (except lost, stolen or destroyed Debt Securities that have been replaced or paid and Debt Securities for whose payment money has theretofore been deposited in trust and thereafter repaid to us) have been delivered to the Trustee for cancellation; or |
| |
| (b) | all outstanding Debt Securities of that series that have been not delivered to the Trustee for cancellation have become due and payable or will become due and payable at their Stated Maturity within one year or are to be called for redemption within one year under arrangements satisfactory to the Trustee and in any case we have irrevocably deposited with the Trustee as trust funds money in an amount sufficient, without consideration of any reinvestment of interest, to pay the entire indebtedness of such Debt SecuritySecurities not delivered to the Trustee for cancellation, for principal, premium, if any, and accrued interest to the Stated Maturity or any affiliate of usredemption date; |
| |
| (2) | we have paid or such other obligor shall be deemed notcaused to be outstanding.paid all other sums payable by us under the Indenture with respect to the Debt Securities of that series; and |
| |
| (3) | we have delivered an Officers’ Certificate and an Opinion of Counsel to the Trustee stating that all conditions precedent to satisfaction and discharge of the Indenture with respect to the Debt Securities of that series have been satisfied. |
Discharge, TerminationLegal Defeasance and Covenant TerminationDefeasance
To the extent indicated in the applicable prospectus supplement, we may elect, at our option at any time, to have our obligations discharged under provisions relating to defeasance and discharge of indebtedness, which we call “legal defeasance,” or relating to defeasance of certain restrictive covenants applied to the Debt Securities of any series, or to any specified part of a series, which we call “covenant defeasance.”
When we establish aLegal Defeasance. The Indentures provide that, upon our exercise of our option (if any) to have the legal defeasance provisions applied to any series of Debt Securities, we may provide thatand, if applicable, each Subsidiary Guarantor will be discharged from all our obligations, and, if such series is subject toDebt Securities are Subordinated Debt Securities, the termination and discharge provisions of the applicable Indenture. If those provisions are made applicable, we may elect either:
• | to terminate and be discharged from all of our obligations with respect to those Debt Securities subject to some limitations; or |
• | to be released from our obligations to comply with specified covenants relating to those Debt Securities, as describedSubordinated Indenture relating to subordination will cease to be effective, with respect to such Debt Securities (except for certain obligations to convert, exchange or register the transfer of Debt Securities, to replace stolen, lost or mutilated Debt Securities, to maintain paying agencies and to hold moneys for payment in trust) upon the applicable prospectus supplement. |
To effect that termination or covenant termination, we must irrevocably deposit in trust withfor the relevant Trustee an amountbenefit of the Holders of such Debt Securities of money or U.S. Government Obligations, or both, which, through the payment of principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient (in the opinion of a nationally recognized firm of independent public accountants) to make paymentspay the principal of and any premium and interest on thosesuch Debt Securities on the respective Stated Maturities in accordance with the terms of the applicable Indenture and any mandatory sinking fund or similar payments on thosesuch Debt Securities. This depositSuch defeasance or discharge may be made in any combination of funds or government obligations. On such a termination, we will not be released from certain of our obligations that will be specified in the applicable prospectus supplement.occur only if, among other things:
To establish such a trust we must deliver to the relevant Trustee an opinion of counsel to the effect that the holders of those Debt Securities
• | |
| (1) | we have delivered to the applicable Trustee an Opinion of Counsel to the effect that we have received from, or there has been published by, the United States Internal Revenue Service a ruling, or there has been a change in tax law, in either case to the effect that Holders of such Debt Securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of the termination or covenant termination;such deposit and |
• | legal defeasance and will be subject to U.S. federal income tax on the same amounts,amount, in the same manner and at the same times as would have been the case if the termination or covenant termination hadsuch deposit and legal defeasance were not occurred.to occur; |
| |
| (2) | no Event of Default or event that with the passing of time or the giving of notice, or both, shall constitute an Event of Default shall have occurred and be continuing at the time of such deposit or, with respect to any |
Event of Default described in clause (8) under “— Events of Default,” at any time until 121 days after such deposit;
| |
| (3) | such deposit and legal defeasance will not result in a breach or violation of, or constitute a default under, any agreement or instrument (other than the applicable Indenture) to which we are a party or by which we are bound; |
| |
| (4) | in the case of Subordinated Debt Securities, at the time of such deposit, no default in the payment of all or a portion of principal of (or premium, if any) or interest on any Senior Debt shall have occurred and be continuing, no event of default shall have resulted in the acceleration of any Senior Debt and no other event of default with respect to any Senior Debt shall have occurred and be continuing permitting after notice or the lapse of time, or both, the acceleration thereof; and |
| |
| (5) | we have delivered to the Trustee an Opinion of Counsel to the effect that such deposit shall not cause the Trustee or the trust so created to be subject to the Investment Company Act of 1940. |
Covenant Defeasance. The Indentures provide that, upon our exercise of our option (if any) to have the covenant defeasance provisions applied to any Debt Securities, we may fail to comply with certain restrictive covenants (but not with respect to conversion, if applicable), including those that may be described in the applicable prospectus supplement, and the occurrence of certain Events of Default, which are described above in clause (5) (with respect to such restrictive covenants) and clauses (6), (7) and (9) under “Events of Default” and any that may be described in the applicable prospectus supplement, will not be deemed to either be or result in an Event of Default and, if such Debt Securities are Subordinated Debt Securities, the provisions of the Subordinated Indenture relating to subordination will cease to be effective, in each case with respect to such Debt Securities. In order to exercise such option, we must deposit, in trust for the benefit of the Holders of such Debt Securities, money or U.S. Government Obligations, or both, which, through the payment of principal and interest in respect thereof in accordance with their terms, will provide money in an amount sufficient (in the opinion of a nationally recognized firm of independent public accountants) to pay the principal of and any premium and interest on such Debt Securities on the respective Stated Maturities in accordance with the terms of the applicable Indenture and such Debt Securities. Such covenant defeasance may occur only if we have delivered to the applicable Trustee an Opinion of Counsel to the effect that Holders of such Debt Securities will not recognize gain or loss for federal income tax purposes as a result of such deposit and covenant defeasance and will be subject to federal income tax on the same amount, in the same manner and at the same times as would have been the case if such deposit and covenant defeasance were not to occur, and the requirements set forth in clauses (2), (3), (4) and (5) above are satisfied. If we effect covenant terminationexercise this option with respect to any series of Debt Securities and such Debt Securities were declared due and payable because of the occurrence of any Event of Default, the amount of deposit with the relevant Trustee mustmoney and U.S. Government Obligations so deposited in trust would be sufficient to pay amounts due on thesuch Debt Securities at the time of their stated maturity. However, those Debt Securities may become due and payable prior to their stated maturity if there is an Event of Default with respect to a covenant from which we have not been released. In that event, the amount on depositrespective Stated Maturities but may not be sufficient to pay all amounts due on such Debt Securities upon any acceleration resulting from such Event of Default. In such case, we would remain liable for such payments.
If we exercise either our legal defeasance or covenant defeasance option, any Subsidiary Guarantee will terminate.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator, stockholder, member, partner or trustee of the Company or any Subsidiary Guarantor, as such, shall have any liability for any obligations of the Company or any Subsidiary Guarantor under the Debt Securities, at the timeIndentures or any Subsidiary Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. By accepting a Debt Security, each Holder shall be deemed to have waived and released all such liability. The waiver and release shall be a part of the acceleration.consideration for the issue of the Debt Securities. The waiver may not be effective to waive liabilities under the federal securities laws, and it is the view of the SEC that such a waiver is against public policy.
The applicable prospectus supplement may further describe the provisions, if any, permitting termination or covenant termination, including any modifications20
Notices
Notices to Holders of Debt Securities will be given by mail to the provisions described above.addresses of such Holders as they may appear in the Security Register.
Title
We, the Subsidiary Guarantors, the Trustees and any agent of us, the Subsidiary Guarantors or a Trustee may treat the Person in whose name a Debt Security is registered as the absolute owner of the Debt Security (whether or not such Debt Security may be overdue) for the purpose of making payment and for all other purposes.
Governing Law
The Indentures and the Debt Securities will be governed by, and construed in accordance with, the lawslaw of the State of New York.
The Trustee
RegardingWe will enter into the Trustees
TheIndentures with a Trustee that is qualified to act under the Trust Indenture Act containsof 1939, as amended, and with any other Trustees chosen by us and appointed in a supplemental indenture for a particular series of Debt Securities. We may maintain a banking relationship in the ordinary course of business with our Trustee and one or more of its affiliates.
Resignation or Removal of Trustee. If the Trustee has or acquires a conflicting interest within the meaning of the Trust Indenture Act, the Trustee must either eliminate its conflicting interest or resign, to the extent and in the manner provided by, and subject to the provisions of, the Trust Indenture Act and the applicable Indenture. Any resignation will require the appointment of a successor Trustee under the applicable Indenture in accordance with the terms and conditions of such Indenture.
The Trustee may resign or be removed by us with respect to one or more series of Debt Securities and a successor Trustee may be appointed to act with respect to any such series. The holders of a majority in aggregate principal amount of the Debt Securities of any series may remove the Trustee with respect to the Debt Securities of such series.
Limitations on Trustee if It Is Our Creditor. Each Indenture will contain certain limitations on the rightsright of a trustee, shouldthe Trustee, in the event that it become abecomes our creditor, of ours, to obtain payment of claims in certain cases, or to realize on certain property received by it in respect of any such claims,claim as security or otherwise.
Certificates and Opinions to Be Furnished to Trustee. Each Trustee is permittedIndenture will provide that, in addition to engage in other transactions with us from time to time, providedcertificates or opinions that if such Trustee acquires any conflicting interest, it must eliminate such conflict upon the occurrencemay be specifically required by other provisions of an EventIndenture, every application by us for action by the Trustee must be accompanied by an Officers’ Certificate and an Opinion of Default underCounsel stating that, in the relevant Indenture, or else resign.opinion of the signers, all conditions precedent to such action have been complied with by us.
Description of capital stockDESCRIPTION OF CAPITAL STOCK
General
As of the date of this prospectus, we are authorized to issue up to 90,000,00050,000,000 shares of stock, including up to 85,000,00040,000,000 shares of common stock, par value $0.01 per share, and up to 5,000,00010,000,000 shares of preferred stock.stock, par value $0.01 per share. As of December 31, 2008,May 22, 2020, we had 30,923,26711,886,543 shares of common stock and no shares of preferred stock outstanding.
The following is a summary of the key terms and provisions of our equity securities. You should refer to the applicable provisions of our articlesFirst Amended and Restated Certificate of incorporation, bylaws,Incorporation (our “Certificate of Incorporation”), our First Amended and Restated Bylaws (our “Bylaws”), the Texas BusinessDelaware General Corporation ActLaw (“DGCL”) and the documents we have incorporated by reference for a complete statement of the terms and rights of our capital stock.
Common Stock
Voting Rights.Rights. Each holder of common stock is entitled to one vote per share. Subject to the rights, if any, of the holders of any series of preferred stock pursuant to applicable law or the provisionprovisions of the certificate of designation creating that series, all voting rights are vested in the holders of shares of common stock. Holders of shares of common stock have noncumulative voting rights, which means that the holders of more than 50% of the shares voting for the election of directors can elect 100% of the directors, and the holders of the remaining shares voting for the election of directors will not be able to elect any directors.
DividendsDividends.. Dividends may be paid to the holders of common stock when, as and if declared by the board of directors of the Company (the “Board”) out of funds legally available for their payment, subject to the rights of holders of any preferred stock. Swift hasWe have never declared a cash dividend and intendswe intend to continue itsour policy of using retained earnings for expansion of itsour business.
Rights upon Liquidation.Liquidation. In the event of our voluntary or involuntary liquidation, dissolution or winding up, the holders of common stock will be entitled to share equally, in proportion to the number of shares of common stock held by them, in any of our assets available for distribution after the payment in full of all debts and distributions and after the holders of all series of outstanding preferred stock, if any, have received their liquidation preferences in full.
Non-AssessableNon-Assessable.. All outstanding shares of common stock are fully paid and non-assessable. Any additional common stock we or the selling stockholders offer and issue under this Prospectusprospectus will also be fully paid and non-assessable.
No Preemptive Rights.Rights. Holders of common stock are not entitled to preemptive purchase rights in future offerings of our common stock.
Section 1123. We are prohibited from issuing any nonvoting equity securities to the extent required under Section 1123(a)(6) of the U.S. Bankruptcy Code and only for so long as Section 1123 of the U.S. Bankruptcy Code is in effect and applicable to us.
ListingListing.. Our outstanding shares of common stock are listed on the New York Stock ExchangeNYSE under the symbol “SFY.“SBOW.” Any additional common stock we issue will also be listed on the NYSE.
Preferred Stock
Our board of directorsThe Board can, without approval of our shareholders, issue one or more series of preferred stock and determine the number of shares of each series and the rights, preferences and limitations of each series. The following
description of the terms of the preferred stock sets forth certain general terms and provisions of our authorized preferred stock. If we offer preferred stock, a description will be filed with the SEC and the specific designations and rights will be described in a prospectus supplement, including the following terms:
the series, the number of shares offered and the liquidation value of the preferred stock;
• | the series, the number of shares offered and the liquidation value of the preferred stock; |
the price at which the preferred stock will be issued;the dividend rate, the dates on which the dividends will be payable and other terms relating to the payment of dividends on the preferred stock;
• | the price at which the preferred stock will be issued; |
the liquidation preference of the preferred stock;the voting rights of the preferred stock;
• | the dividend rate, the dates on which the dividends will be payable and other terms relating to the payment of dividends on the preferred stock; |
whether the preferred stock is redeemable or subject to a sinking fund, and the terms of any such redemption or sinking fund;whether the preferred stock is convertible or exchangeable for any other securities, and the terms of any such conversion; and
• | the liquidation preference of the preferred stock; |
• | the voting rights of the preferred stock; |
• | whether the preferred stock is redeemable or subject to a sinking fund, and the terms of any such redemption or sinking fund; |
• | whether the preferred stock is convertible or exchangeable for any other securities, and the terms of any such conversion; and |
• | any additional rights, preferences, qualifications, limitations and restrictions of the preferred stock. |
The description of the terms of the preferred stock to be set forth in an applicable prospectus supplement will not be complete and will be subject to and qualified in its entirety by reference to the certificate of designation relating to the applicable series of preferred stock. The registration statement of which this prospectus forms a part will include the certificate of designation as an exhibit or incorporate it by reference.
Undesignated preferred stock may enable our board of directorsBoard to render more difficult or to discourage an attempt to obtain control of us by means of a tender offer, proxy contest, merger or otherwise, and to thereby protect the continuity of our management. The issuance of shares of preferred stock may adversely affect the rights of the holders of our common stock. For example, any preferred stock issued may rank prior to our common stock as to dividend rights, liquidation preference or both, may have full or limited voting rights and may be convertible into shares of common stock. As a result, the issuance of shares of preferred stock may discourage bids for our common stock or may otherwise adversely affect the market price of our common stock or any existing preferred stock.
Any preferred stock will, when issued, be fully paid and non-assessable.
Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws
Anti-takeover Provisions
CertainSome provisions of Delaware law, our Certificate of Incorporation and our Bylaws contain provisions that could make the following transactions more difficult: acquisitions of us by means of a tender offer, a proxy contest or otherwise or removal of our incumbent officers and directors. These provisions may also have the effect of preventing changes in our articlesmanagement. It is possible that these provisions could make it more difficult to accomplish or could deter transactions that stockholders may otherwise consider to be in their best interest or in our best interests, including transactions that might result in a premium over the market price for our shares.
These provisions are expected to discourage coercive takeover practices and inadequate takeover bids. These provisions are also designed to encourage persons seeking to acquire control of incorporation, bylawsus to first negotiate with us. We believe that the benefits of increased protection and our shareholders’ rights plan may encourage persons considering unsolicited tender offers or other unilateral takeover proposalspotential ability to negotiate with the proponent of an unfriendly or unsolicited proposal to acquire or restructure us outweigh the disadvantages of discouraging these proposals because, among other things, negotiation of these proposals could result in an improvement of their terms.
Delaware Law
Section 203 of the DGCL prohibits a Delaware corporation from engaging in any business combination with any interested stockholder for a period of three years following the date that the stockholder became an interested stockholder, unless:
the transaction is approved by the Board before the date the interested stockholder attained that status;
upon consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced; or
on or after such time the business combination is approved by the Board and authorized at a meeting of stockholders by at least 66 2⁄3% of the outstanding voting stock that is not owned by the interested stockholder.
An interested stockholder is defined as a person who, together with any affiliates or associates of such person, beneficially owns, directly or indirectly, 15% or more of the outstanding voting shares of a Delaware corporation. The term “business combination” is broadly defined to include a broad array of transactions, including mergers, consolidations, sales or other dispositions of assets having a total value in excess of 10% of the consolidated assets of the corporation or all of the outstanding stock of the corporation, and some other transactions that would increase the interested stockholder’s proportionate share ownership in the corporation.
We have elected to not be subject to the provisions of Section 203 of the DGCL.
Our Certificate of Incorporation and Our Bylaws
Provisions of our boardCertificate of directors rather than pursue non-negotiated takeover attempts.
Our Classified Board of Directors. Our bylaws provideIncorporation and our Bylaws may delay or discourage transactions involving an actual or potential change in control or change in our management, including transactions in which stockholders might otherwise receive a premium for their shares, or transactions that our boardstockholders might otherwise deem to be in their best interests. Therefore, these provisions could adversely affect the price of directors is dividedour common stock.
Among other things, our Certificate of Incorporation and Bylaws:
provide for the division of the Board into three classes, each class consisting as nearly equal in number as possible.possible of one-third of the whole. The term of office of one class of directors ofexpires each year; with each class areof directors elected for three-year terms,a term of three years and until the stockholders elect their qualified successors, subject to the terms of the three classes are staggered soNomination Agreement (as defined below);
provide that directors fromall vacancies, including newly created directorships, may, except as otherwise required by law or, if applicable, the rights of holders of a single class are elected at each annual meeting of stockholders. A staggered board makes it more difficult for shareholders to change the majority of the directors and instead promotes continuity of existing management.
Our Ability to Issue Preferred Stock. As discussed above, our board of directors can set the voting rights, redemption rights, conversion rights and other rights relating to authorized but unissued sharesseries of preferred stock and could issue that stock in either private or public transactions. Preferred stock could be issued for the purpose of preventing a merger, tender offer or other takeover attempt which thecertain board of directors opposes.
Our Rights Plan. Our board of directors has adopted a stockholders’designation rights, plan. The rights attach to all common stock certificates representing outstanding shares. One right is issued for each share of common stock outstanding. Each right entitles the registered holder, under the circumstances described below, to purchase from us one one-thousandth of a share of our Series A Junior Participating Preferred Stock, a “Series A” share, at a price of $250.00 per one one-thousandth of a Series A share,and subject to adjustment. The dividend and liquidation rights and the non-redemption feature of the Series A shares are designed so that the value of one one-thousandth of a Series A share purchasable upon exercise of each right will approximate the value of one share of common stock. The following is a summary of the terms of the rights plan. You should refer toNomination Agreement, be filled by a majority of directors then in office, even if less than a quorum, or by the applicable provisionssole remaining director;
provide that our Bylaws may be amended by the affirmative vote of the rights plan which we have incorporated by reference as an exhibit to the registration statement of which this prospectus is a part.
The rights will separate from the common stock and right certificates will be distributed to the holders of at least 66 2⁄3% of our then outstanding voting stock;
provide that special meetings of our stockholders may only be called by our Chairman of the Board, Chief Executive Officer or by a majority of the total number of directors which the Company would have if there were no vacancies;
authorize the Board to adopt resolutions providing for the issuance of undesignated preferred stock. This ability makes it possible for the Board to issue, without stockholder approval, preferred stock with voting or other rights or preferences that could impede the success of any attempt to change control of us;
provide that the authorized number of directors may be changed only by the Board, subject to the terms of the Nomination Agreement;
establish advance notice procedures with regard to stockholder proposals relating to the nomination of candidates for election as directors or new business (other than proposals submitted in accordance with Rule 14a-8 for inclusion in our proxy proposals) to be brought before meetings of our stockholders. These procedures provide that notice of stockholder proposals must be timely given in writing to our corporate secretary prior to the meeting at which the action is to be taken. Generally, for a proposal to be timely submitted for consideration at an annual meeting, notice must be delivered to our secretary not less than 90 days nor more than 120 days prior to the first anniversary date of the annual meeting for the preceding year. Our Bylaws specify the requirements as to form and content of all stockholders’ notices. These requirements may preclude stockholders from bringing matters before the stockholders at an annual or special meeting;
provide that our Bylaws may be amended by the Board; and
provide that that, unless we consent in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall, to the fullest extent permitted by law, be the sole and exclusive forum for (1) any derivative action or proceeding brought on behalf of the Company, (2) any action asserting a claim of breach of a fiduciary duty owed by any director, officer, employee or agent of the Company to the Company or the Company’s stockholders, (3) any action asserting a claim arising pursuant to any provision of the DGCL, the Certificate of Incorporation or Bylaws, or (4) any action asserting a claim against the Company or any director or officer or other employee of the Company governed by the internal affairs doctrine, in each such case subject to such Court of Chancery having personal jurisdiction over the indispensable parties named as defendants therein.
Any person or entity purchasing or otherwise holding any interest in shares of our capital stock will be deemed to have notice of, and consented to, the provisions of our Certificate of Incorporation regarding exclusive forum. The enforceability of similar exclusive forum provisions in other companies’ certificates of incorporation has been challenged in legal proceedings, and it is possible that, in connection with one or more actions or proceedings described above, a court could rule that this provision in our Certificate of Incorporation is inapplicable or unenforceable.
The exclusive forum provision would not apply to suits brought to enforce any liability or duty created by the Securities Act or the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction. To the extent that any such claims may be based upon federal law claims, Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder. Furthermore, Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder.
Director Nomination Agreement
In connection with our emergence from bankruptcy on April 22, 2016 (the “Effective Date”), we entered into the Director Nomination Agreement (the “Nomination Agreement”) with Strategic Value Partners, LLC (“SVP”) and certain other consenting noteholders named therein (the “Consenting Noteholders”). The Nomination Agreement is referenced in the Certificate of Incorporation as necessary to effectuate its terms. Pursuant to the Nomination Agreement:
(1) following the expiration of the initial terms of the Board, the Board will consist of seven members as follows:
(a) the Chief Executive Officer of the Company, which shall be a Class III Director;
(b) two nominees designated by SVP (the “SVP Designated Directors”), which shall be one Class I Director and one Class III Director; provided, that (i) the number of nominees designated by SVP shall be reduced to one director, which shall be a Class III Director, at such time as SVP and its affiliates (other than other Consenting Noteholders) (the “SVP Entities”) collectively beneficially own common stock representing an equity percentage of less than 15% and greater than or equal to 8%, with the understanding that such reduction to one director shall be permanent and despite any later increase in their equity percentage, and (ii) SVP shall permanently, and despite any later increase in their equity percentage, no longer be entitled to designate a nominee at such time as the SVP Entities collectively beneficially own common stock representing an equity percentage of less than 8%;
(c) two nominees designated by the Consenting Noteholders (excluding SVP until such time that SVP is no longer entitled to designate an SVP Designated Director), which shall be two Class II Directors; provided, that (i) the number of nominees designated by the Consenting Noteholders shall be reduced to one director, which shall be a Class II Director, at such time as the Consenting Noteholders and their affiliates (the “Noteholder Entities”) collectively beneficially own common stock representing an equity percentage of less than 15% and greater than or equal to 8%, with the understanding that such reduction to one director shall be permanent and despite any later increase in their equity percentage, and (ii) except as set forth in section (d) below, such Consenting Noteholders shall permanently, and despite any later increase in their equity percentage, no longer be entitled to designate a nominee at such time as the Noteholder Entities collectively beneficially own common stock representing an equity percentage of less than 8%;
(d) for the purposes of calculating the equity percentage in clauses (i) and (ii) of section (c), with respect to SVP’s ownership, the equity percentage shall only include the portion of SVP’s equity percentage that exceeds 15% up to a maximum of 7.9%, until such time that SVP is no longer entitled to designate an SVP Designated Director. At such time that SVP is no longer entitled to designate an SVP Designated Director, all of SVP’s ownership shall be included in the equity percentage calculations in clauses (i) and (ii) of section (c). For the purposes of section (c), the designation right contained in such provision shall still be available at the time SVP is no longer entitled to designate an SVP Designated Director, if at such time, the equity percentage ownership threshold in clause (ii) of section (c) is satisfied; and
(e) one independent director and one additional director (which will be the Non-Executive Chairman) nominated by the Nominating and Strategy Committee of the earlier of:Board, which shall be a Class I Director and a Class III Director, respectively.
• | 10 business days following a public announcement that a person or group of affiliated persons has acquired beneficial ownership of 15% or more of our outstanding voting shares, or |
• | 10 business days following the commencement or announcement of an intention to commence a tender offer or exchange offer which would result in a person or group beneficially owning 15% or more of our outstanding voting shares. |
(2) for so long as such persons are entitled to designate a nominee for director under the terms thereof, SVP and the Consenting Noteholders have the right to remove the respective directors nominated by them pursuant to the Nomination Agreement, and to designate an individual to fill the vacancy created by such removal or upon any other removal of such person as director under the Certificate of Incorporation or Bylaws on the date of such replacement designation.
The Nomination Agreement terminates upon the earlier to occur of (x) such time as the Consenting Noteholders in the aggregate no longer beneficially own common stock representing an equity percentage equal to or greater than 8% or (y) the delivery of written notice to the Company by all of the Consenting Noteholders, requesting the termination of the Nomination Agreement. Further, at such time as a particular Consenting Noteholder no longer beneficially owns any shares of common stock, all rights are not exercisable until rights certificates are distributed. The rightsand obligations of such Consenting Noteholder under the Nomination Agreement will expire on December 20, 2016, unless that date is extendedterminate.
Negative Control Rights of Consenting Noteholders
Pursuant to the Certificate of Incorporation, at any time in which one or more directors designated by SVP or the rightsConsenting Noteholders is serving on the Board and Consenting Noteholders own at least 50% of the Company’s issued and outstanding shares of common stock, the Company shall not take any of the following actions if Consenting Noteholders that are earlier redeemedparty to the Nomination Agreement and that hold in the aggregate at least 50% of the Company’s issued and outstanding shares of common stock object to such action in writing pursuant to the procedures set forth in the Certificate of Incorporation:
(a) the sale or exchanged.
Ifother disposition of assets of the Company or any of its subsidiaries, in any single transaction or series of related transactions, with a person or group (with certain exceptions for investment advisers) acquires 15% or morefair market value in the aggregate in excess of our voting shares, each right then outstanding,$75 million, other than rights beneficially owned by(i) any such personsales or group, becomes a rightdispositions to buy that numberor among the Company and its subsidiaries and (ii) the sale or disposition of hydrocarbons, accounts receivable, surplus or obsolete equipment (excluding the disposition of oil and gas in place and other interests in real property and volumetric production payments) in the ordinary course of business;
(b) any sale, recapitalization, liquidation, dissolution, winding up, bankruptcy event, reorganization, consolidation, or merger of the Company or any of its subsidiaries;
(c) issuing or repurchasing any shares of common stock or other equity securities (or securities convertible into or assets havingexercisable for equity securities) of the Company in an amount that is in the aggregate in excess of $5 million, other than (i) pursuant to employee benefit and incentive plans, (ii) the repurchase of capital stock deemed to occur upon the exercise of stock options or other equity awards to the extent such capital stock represents a market valueportion of two times the exercise price of the right. The rights belonging to the acquiring person or group become null and void.
If Swift is acquired in a mergerthose stock options or other business combination,equity awards and any repurchase of capital stock made in lieu of or 50%to satisfy withholding or similar taxes in connection with any exercise or exchange of its consolidated assetsstock options, warrants, equity incentives, other equity awards or assets producing more than 50% of its earning power or cash flow are sold, each holder of a right will haveother rights to acquire capital stock and (iii) the right to receive that numberissuance of shares of common stock upon exercise of warrants pursuant to the Warrant Agreement dated April 22, 2016 between the Company and American Stock Transfer & Trust Company, LLC;
(d) incurring any indebtedness for borrowed money (including through capital leases, the issuance of debt securities or the guarantee of indebtedness of another person or entity), in any single transaction or series of related transactions, that is in the aggregate in excess of $75 million, other than (i) any indebtedness incurred to refinance indebtedness issued for less than $75 million (which such amount shall be calculated in the aggregate for any series of related transactions), (ii) intercompany indebtedness, (iii) hedging obligations in the ordinary course of business and not for speculative purposes and (iv) other indebtedness in respect of workers’ compensation claims, insurance contracts, self-insurance obligations, bankers’ acceptances, performance and surety bonds and other similar guarantees of obligations in the ordinary course of business;
(e) entering into any proposed transaction or series of related transactions involving a Change of Control of the acquiring companyCompany, which at the timefor purposes of suchthis provision, “Change of Control” shall mean any transaction has a market value of two times the purchase price of the right.
Atresulting in any time after a person or group acquires beneficial ownership of 15% or more of our outstanding voting shares(as such terms are defined in Sections 13(d) and before the earlier14(d) of the two events describedExchange Act) acquiring “beneficial ownership” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act) of more than 50% of the total outstanding equity interests of the Company (measured by voting power rather than number of shares);
(f) entering into or consummating any material acquisition of businesses, companies or assets (whether through sales or leases) or joint ventures, in any single transaction or series of related transactions, in the prior paragraphaggregate in excess of $75 million;
(g) increasing or acquisition bydecreasing the size of the Board;
(h) amending the Certificate of Incorporation or the Bylaws of the Company; and
(i) entering into any arrangements or transactions with affiliates of the Company.
The foregoing provisions are not intended to eliminate or reduce any fiduciary duties a personmember of the Board may have to any stockholder or group of beneficial ownershipstockholders of 50% or morethe Company that may otherwise exist under the DGCL. Consenting Noteholders are entitled to advanced notice of the foregoing proposed actions in the manner provided in the Certificate of Incorporation.
Limitations of Liability and Indemnification Matters
Our Certificate of Incorporation limits the liability of our outstanding voting shares,directors for monetary damages for breach of their fiduciary duty as directors, except for liability that cannot be eliminated under the DGCL. Delaware law provides that directors of a company will not be personally liable for monetary damages for breach of their fiduciary duty as directors, except for liabilities:
for any breach of their duty of loyalty to us or our board of directors may, at its option, exchange the rights, other than those owned by such personstockholders;
for acts or group,omissions not in wholegood faith or in part, at an exchange ratio of one share of common stockwhich involve intentional misconduct or a fractional shareknowing violation of Series Alaw;
for unlawful payment of dividend or unlawful stock repurchase or redemption, as provided under Section 174 of the DGCL; or
for any transaction from which the director derived an improper personal benefit.
Any amendment, repeal or modification of these provisions will be prospective only and would not affect any limitation on liability of a director for acts or omissions that occurred prior to any such amendment, repeal or modification.
Our Certificate of Incorporation also provides that we will indemnify our directors and officers to the fullest extent permitted by Delaware law. If Delaware law is amended to authorize corporate action further eliminating or limiting the personal liability of a director, then the liability of our directors will be eliminated or limited to the fullest extent permitted by Delaware law, as so amended. Our Certificate of Incorporation also permits us to purchase insurance on behalf of any officer, director, employee or other preferred stock equivalentagent for any liability arising out of that person’s actions as our officer, director, employee or agent, regardless of whether Delaware law would permit indemnification. We have entered into indemnification agreements with each of our directors and officers. These agreements require us to indemnify these individuals to the fullest extent permitted under Delaware law against liability that may arise by reason of their service to us, and to advance expenses incurred as a result of any proceeding against them as to which they could be indemnified. We believe that the limitation of liability provision in value thereto, per right.
Certificate of Incorporation and the indemnification agreements facilitates our ability to continue to attract and retain qualified individuals to serve as directors and officers.
The Serieslimitation of liability and indemnification provisions in our Certificate of Incorporation and Bylaws may discourage stockholders from bringing a lawsuit against directors for breach of their fiduciary duties. They may also reduce the likelihood of derivative litigation against directors and officers, even though an action, if successful, might benefit us and our stockholders. A shares issuable upon exercisestockholder’s investment may be harmed to the extent we pay the costs of settlement and damage awards against directors and officers pursuant to these indemnification provisions. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that, in the opinion of the rights will be non-redeemableSEC, such indemnification is against public policy as expressed in the Securities Act, and rank junior to all other seriesis, therefore, unenforceable. There is no pending litigation or proceeding naming any of our preferred stock. Each whole Series A share will be entitleddirectors or officers as to receive a quarterly preferential dividend in an amount per share equal to the greater of $1.00 in cash, or in the aggregate, 1,000 times the dividend declared on the common stock, subject to adjustment. In the event of liquidation, the holders of Series A share may receive a preferential liquidation payment equal to the greater of $1,000 per share, or in the aggregate, 1,000 times the payment made on the shares of common stock. In the eventwhich indemnification is being sought, nor are we aware of any merger, consolidationpending or other transactionthreatened litigation that may result in whichclaims for indemnification by any director or officer.
Registration Rights Agreement
On the Effective Date, we entered into a registration rights agreement (the “Noteholder Registration Rights Agreement”) with parties who received shares of common stock are exchanged forupon the Effective Date (the “RRA Holders”) representing 5% or changed into other stock or securities, cash or other property, each whole Series A share will be entitled to receive 1,000 times the amount received per sharemore of common stock. Each whole Series A share will be entitled to 1,000 votes on all matters submitted to a vote of our stockholders and Series A shares will generally vote together as one class with the common stock outstanding on that date. The Noteholder Registration Rights Agreement provides resale registration rights for the RRA Holders’ Registrable Securities (as defined in the Noteholder Registration Rights Agreement).
Pursuant to the Noteholder Registration Rights Agreement, RRA Holders have customary demand, underwritten offering and any other capitalpiggyback registration rights, subject to the limitations set forth in the Noteholder Registration Rights Agreement. Under their demand registration rights, RRA Holders owning at least 5% of the outstanding shares of common stock may request us to register all or a portion of their Registrable Securities, including on a delayed or continuous basis under Rule 415 of the Securities Act. Each RRA Holder is entitled to two demand registrations. Generally, we are required to provide notice of the demand request within five business days following the receipt of the demand notice to all matters submittedadditional RRA Holders, who may, in certain circumstances, participate in the registration. Under their underwritten offering registration rights, RRA Holders also have the right to a vote of our stockholders.demand us to effectuate the
Priordistribution of any or all of its Registrable Securities by means of an underwritten offering pursuant to an effective registration statement. Each RRA Holder is entitled to two underwritten offering requests. We are not obligated to effect a demand notice or an underwritten demand notice within 180 days of closing either a demand registration or an underwritten offering. We are required to maintain the effectiveness of any such registration statement until the earlier of 180 days (or two years if a “shelf registration” is requested) after the date it is determined thatEffective Date and the consummation of the distribution by the participating RRA Holders. Under their piggyback registration rights, if at any time we propose to register an offering of common stock for our own account, we must give at least five business days’ notice to all RRA Holders of Registrable Securities to allow them to include a specified number of their shares in the registration statement.
These registration rights are subject to certain conditions and limitations, including the right certificates areof the underwriters to limit the number of shares to be distributedincluded in a registration and our right to delay or withdraw a registration statement under certain circumstances. We will generally pay all registration expenses in connection with our obligations under the expiration dateNoteholder Registration Rights Agreement, regardless of whether a registration statement is filed or becomes effective. The registration rights granted in the rights, our boardNoteholder Registration Rights Agreement are subject to customary indemnification and contribution provisions, as well as customary restrictions such as blackout periods and, if an underwritten offering is contemplated, limitations on the number of directorsshares to be included in the underwritten offering that may redeem all, but not less than all, ofbe imposed by the then outstanding rights at a price of $0.01 per right. Our board of directors in its sole discretion may establishmanaging underwriter.
The obligations to register shares under the effective date and other terms and conditions of the redemption. Upon redemption, the ability to exercise the rightsNoteholder Registration Rights Agreement will terminate and the holders of rights will only be entitled to receive the redemption price.
As long as the rights are redeemable, we may amend the rights agreement in any manner except to change the redemption price. After the rights are no longer redeemable, we may, except with respect to us and each RRA Holder on the redemption price, amend the rights agreement in any manner that does not adversely affect the interests of holders of the rights.
Business Combinations Under Texas Law. Swift is a Texas corporation subject to Part Thirteen of the Texas Business Corporation Act known as the “Business Combination Law.” In general, the Business Combination Law prevents an affiliated shareholder, or its affiliates or associates, from entering into a business combination with an issuing public corporation during the three-year period immediately following thefirst date onupon which the affiliated shareholder became an affiliated shareholder, unless:RRA Holder no longer beneficially owns any Registrable Securities.
Transfer Agent and Registrar
The transfer agent and registrar for our common stock is American Stock Transfer & Trust Company, LLC.
DESCRIPTION OF DEPOSITARY SHARES
• | before the date such person became an affiliated shareholder, the board of directors of the issuing public corporation approves the business combination or the acquisition of shares that caused the affiliated shareholder to become an affiliated shareholder; or |
• | not less than six months after the date such person became an affiliated shareholder, the business combination is approved by the affirmative vote of holders of at least two-thirds of the issuing public corporation’s outstanding voting shares not beneficially owned by the affiliated shareholder, or its affiliates or associates. |
An affiliated shareholder is a person that is or was within the preceding three-year period the beneficial owner of 20% or more of a corporation’s outstanding voting shares. An issuing public corporation includes most publicly held Texas corporations, including Swift. The term business combination includes: • | mergers, share exchanges or conversions involving the affiliated shareholder; |
• | dispositions of assets involving the affiliated shareholder having an aggregate value of 10% or more of the market value of the assets or of the outstanding common stock or representing 10% or more of the earning power or net income of the corporation; |
• | issuances or transfers of securities by the corporation to the affiliated shareholder other than on a pro rata basis; |
• | plans or agreements relating to a liquidation or dissolution of the corporation involving an affiliated shareholder; |
• | reclassifications, recapitalizations, distributions or other transactions that would have the effect of increasing the affiliated shareholder’s percentage ownership of the corporation; and |
• | the receipt of tax, guarantee, loan or other financial benefits by an affiliated shareholder other than proportionately as a shareholder of the corporation. |
Description of depositary shares
General
We may offer fractional shares of preferred stock, represented by depositaryrather than full shares andof preferred stock. If we decide to offer fractional shares of preferred stock, we will issue depositary receipts evidencing thefor depositary shares. Each depositary share will represent a fraction of a share of a particular series of preferred stock. SharesThe prospectus supplement will indicate that fraction. The shares of preferred stock of each class or series represented by depositary shares will be deposited under a separate depositdepositary agreement amongbetween us and a bank or trust company acting as the “Depository”that meets certain requirements and the holders of the depositary receipts. Subject to the terms of the deposit agreement, eachis selected by us (the “Bank Depositary”). Each owner of a depositary receiptshare will be entitled in proportion to the fraction of a share of preferred stock represented by the depositary shares evidenced by the depositary receipt, to all the rights and preferences of the preferred stock represented by the depositary share. The depositary shares will be evidenced by depositary receipts issued pursuant to the depositary agreement. Depositary receipts will be distributed to those persons purchasing the fractional shares of preferred stock in accordance with the terms of the offering.
We have summarized selected provisions of a depositary agreement and the related depositary receipts. The summary is not complete. The forms of the depositary agreement and the depositary receipts relating to any particular issue of depositary shares will be filed with the SEC via a Current Report on Form 8-K prior to our offering of the depositary shares, and you should read such documents for provisions that may be important to you.
As of the date of this prospectus, we had no depositary shares issued and outstanding.
Dividends and Other Distributions
If we pay a cash distribution or dividend on a series of preferred stock represented by depositary shares, the Bank Depositary will distribute such dividends to the record holders of such depositary shares. Those rights includeIf the distributions are in property other than cash, the Bank Depositary will distribute the property to the record holders of the depositary shares. However, if the Bank Depositary determines that it is not feasible to make the distribution of property, the Bank Depositary may, with our approval, sell such property and distribute the net proceeds from such sale to the record holders of the depositary shares.
Redemption of Depositary Shares
If we redeem a series of preferred stock represented by depositary shares, the Bank Depositary will redeem the depositary shares from the proceeds received by the Bank Depositary in connection with the redemption. The redemption price per depositary share will equal the applicable fraction of the redemption price per share of the preferred stock. If fewer than all the depositary shares are redeemed, the depositary shares to be redeemed will be selected by lot or pro rata as the Bank Depositary may determine.
Voting the Preferred Stock
Upon receipt of notice of any dividend,meeting at which the holders of the preferred stock represented by depositary shares are entitled to vote, the Bank Depositary will mail the notice to the record holders of the depositary shares relating to such preferred stock. Each record holder of these depositary shares on the record date (which will be the same date as the record date for the preferred stock) may instruct the Bank Depositary as to how to vote the preferred stock represented by such holder’s depositary shares. The Bank Depositary will endeavor, insofar as practicable, to vote the amount of the preferred stock represented by such depositary shares in accordance with such instructions, and we will take all action which the Bank Depositary deems necessary in order to enable the Bank Depositary to do so. The Bank Depositary will abstain from voting conversion, redemption and liquidation rights. Immediately following the issuance and deliveryshares of the preferred stock to the Depository, we will causeextent it does not receive specific instructions from the Depository to issueholders of depositary shares representing such preferred stock.
Amendment and Termination of the Depositary Agreement
The form of depositary receipt evidencing the depositary receipts on our behalf.
Ifshares and any provision of the depositary agreement may be amended by agreement between the Bank Depositary and us. However, any amendment that materially and adversely alters the rights of the holders of depositary shares are offered,will not be effective unless such amendment has been approved by the applicable prospectus supplement will describeholders of at least a majority of the terms of such depositary shares then outstanding. The depositary agreement may be terminated by the deposit agreementBank Depositary or us only if (1) all outstanding depositary shares have been redeemed or (2) there has been a final distribution in respect of the preferred stock in connection with any liquidation, dissolution or winding up of our company and if applicable,such distribution has been distributed to the holders of depositary receipts.
Charges of Bank Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the depositary receipts, includingarrangements. We will pay charges of the following, where applicable:
• | the payment of dividends or other cash distributions to the holders of depositary receipts when such dividends or other cash distributions are made with respect to the preferred stock; |
• | the voting by a holder of depositary shares of the preferred stock underlying such depositary shares at any meeting called for such purpose; |
• | if applicable, the redemption of depositary shares upon a redemption by us of shares of preferred stock held by the Depository; |
• | if applicable, the exchange of depositary shares upon an exchange by us of shares of preferred stock held by the Depository for debt securities or common stock; |
• | if applicable, the conversion of the shares of preferred stock underlying the depositary shares into shares of our common stock, other shares of our preferred stock or our debt securities; |
• | the terms upon which the deposit agreement may be amended and terminated; |
• | a summary of the fees to be paid by us to the Depository; |
• | the terms upon which a Depository may resign or be removed by us; and |
• | any other terms of the depositary shares, the deposit agreement and the depositary receipts. |
If a holderBank Depositary in connection with the initial deposit of the preferred stock and any redemption of the preferred stock. Holders of depositary receipts surrenderswill pay other transfer and other taxes and governmental charges and any other charges, including a fee for the depositary receipts at the corporate trust office of the Depository, unless the related depositary shares have previously been called for redemption, converted or exchanged into other securities of Swift, the holder will be entitled to receive at this office the numberwithdrawal of shares of preferred stock and any money or other property represented by such depositary shares. Holdersupon surrender of depositary receipts, willas are expressly provided in the depositary agreement to be entitled to receive whole and,for their accounts.
Withdrawal of Preferred Stock
Upon surrender of depositary receipts at the principal office of the Bank Depositary, subject to the extent provided by the applicable prospectus supplement, fractional sharesterms of the preferred stock ondepositary agreement, the basisowner of the proportiondepositary shares may demand delivery of preferred stock represented by each depositary share as specified in the applicable prospectus supplement. Holdersnumber of whole shares of preferred stock received in exchange forand all money and other property, if any, represented by those depositary shares will no longer be entitled to receive depositary shares in exchange forshares. Partial shares of preferred stock.stock will not be issued. If the holder delivers depositary receipts evidencingdelivered by the holder evidence a number of depositary shares that is more thanin excess of the number of depositary shares representing the number of whole shares of preferred stock to be withdrawn, the DepositoryBank Depositary will issuedeliver to such holder at the holdersame time a new depositary receipt evidencing suchthe excess number of depositary shares. Holders of preferred stock thus withdrawn may not thereafter deposit those shares atunder the same time.depositary agreement or receive depositary receipts evidencing depositary shares therefor.
Miscellaneous
Prospective purchasersThe Bank Depositary will forward to holders of depositary receipts all reports and communications from us that are delivered to the Bank Depositary and that we are required to furnish to the holders of the preferred stock.
Neither the Bank Depositary nor we will be liable if we are prevented or delayed by law or any circumstance beyond our control in performing our obligations under the depositary agreement. The obligations of the Bank Depositary and us under the depositary agreement will be limited to performance in good faith of our duties thereunder, and neither of us will be obligated to prosecute or defend any legal proceeding in respect of any depositary shares shouldor preferred stock unless satisfactory indemnity is furnished. Further, both of us may rely upon written advice of counsel or accountants, or upon information provided by persons presenting preferred stock for deposit, holders of depositary receipts or other persons believed to be aware that special tax, accountingcompetent and other considerationson documents believed to be genuine.
Resignation and Removal of Bank Depositary
The Bank Depositary may resign at any time by delivering to us notice of its election to do so, and we may at any time remove the Bank Depositary. Any such resignation or removal will take effect upon the appointment of a successor Bank Depositary and its acceptance of such appointment. Such successor Bank Depositary must be applicable to instruments such as depositary shares.appointed within 60 days after delivery of the notice of resignation or removal and must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $50 million.
General
We may issue warrants for the purchase of preferred orour common stock, eitherpreferred stock or debt securities or any combination thereof. Warrants may be issued independently or together with otherour common stock, preferred stock or debt securities and may be attached to or separate from any such offered securities. Each series of warrants will be issued under a separate warrant agreement to be entered into between Swiftus and a bank or trust company. Youcompany, as warrant agent. The warrant agent will act solely as our agent in connection with the warrants. The warrant agent will not have any obligation or relationship of agency or trust for or with any holders or beneficial owners of warrants. Warrants will be offered and exercisable for United States dollars only. Warrant will be issued in registered form only. This summary of certain provisions of the warrants is not complete. For the terms of a particular series of warrants, you should refer to the prospectus supplement for that series of warrants and the warrant agreement for that particular series.
Stock Warrants
The prospectus supplement relating to a particular series of warrants to purchase our common stock or preferred stock will describe the specificterms of the warrants, being offeredincluding the following:
the title of the warrants;
the offering price for the completewarrants, if any;
the aggregate number of the warrants;
the designation and terms of such warrant agreementthe common stock or preferred stock that may be purchased upon exercise of the warrants;
if applicable, the designation and terms of the securities with which the warrants are issued and the warrants.number of warrants issued with each security;
if applicable, the date from and after which the warrants and any securities issued with the warrants will be separately transferable;
Each warrant will entitle the holder to purchase the number of shares of preferred or common stock ator preferred stock that may be purchased upon exercise of a warrant and the exercise price set forth in,for the warrants;
the dates on which the right to exercise the warrants shall commence and expire;
if applicable, the minimum or calculable as set forth inmaximum amount of the warrants that may be exercised at any one time;
if applicable, a discussion of material United States federal income tax considerations;
the anti-dilution provisions of the warrants, if any;
the redemption or call provisions, if any, applicable to the warrants;
any provisions with respect to holder’s right to require us to repurchase the warrants upon a change in control; and
any additional terms of the warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the warrants.
Holders of equity warrants will not be entitled to:
vote, consent or receive dividends;
receive notice as stockholders with respect to any meeting of stockholders for the election of our directors or any other matter; or
exercise any rights as stockholders of the Company.
Debt Warrants
The prospectus supplement. Thesupplement relating to a particular issue of warrants to purchase debt securities will describe the terms of the debt warrants, including the following:
the title of the debt warrants;
the offering price for the debt warrants, if any;
the aggregate number of the debt warrants;
the designation and terms of the debt securities, including any conversion rights, purchasable upon exercise of the debt warrants;
if applicable, the date from and after which the debt warrants and any debt securities issued with them will be separately transferable;
the principal amount of debt securities that may be purchased upon exercise of a debt warrant and the exercise price for the warrants, which may be subjectpayable in cash, securities or other property;
the dates on which the right to adjustment uponexercise the occurrencedebt warrants will commence and expire;
if applicable, the minimum or maximum amount of certain events, as set forth inthe debt warrants that may be exercised at any one time;
information with respect to book-entry procedures, if any;
if applicable, a discussion of material United States federal income tax considerations;
the anti-dilution provisions of the debt warrants, if any;
the redemption or call provisions, if any, applicable prospectus supplement. Afterto the close of business ondebt warrants;
any provisions with respect to the expiration dateholder’s right to require us to repurchase the warrants upon a change in control; and
any additional terms of the debt warrants, including terms, procedures, and limitations relating to the exchange, exercise and settlement of the debt warrants.
Debt warrant unexercised warrantscertificates will become void. The place or places where, and the manner in which,be exchangeable for new debt warrant certificates of different denominations. Debt warrants may be exercised shallat the corporate trust office of the warrant agent or any other office indicated in the prospectus supplement. Prior to the exercise of their debt warrants, holders of debt warrants will not have any of the rights of holders of the debt securities purchasable upon exercise and will not be specified inentitled to payment of principal or any applicable prospectus supplement.premium, if any, or interest on the debt securities purchasable upon exercise.
Plan of distributionPLAN OF DISTRIBUTION
We may sell theThe securities offered by this prospectus and applicable prospectus supplements may be sold from time to time in one or more of the following ways:
ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
• | to underwriters or dealers for resale to the public or to institutional investors; |
block trades in which the broker-dealer will attempt to sell the shares as agent, but may position and resell a portion of the block as principal to facilitate the transaction;purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
• | through agents to the public or to institutional investors; |
privately negotiated transactions;through the distribution of the securities by any selling stockholder to its partners, members or stockholders;
• | directly to a limited number of purchasers; |
to underwriters or dealers for resale to the public or to institutional investors;through agents to the public or to institutional investors;
• | directly to institutional investors; or |
directly to a limited number of purchasers;directly to institutional investors; or
• | through a combination of any such methods of sale. |
Any such underwriter, dealer or agent may be deemed to be an underwriter within the meaning of the Securities Act of 1933.
Act.
The applicable prospectus supplement relating to the securities will set forth:
their offering terms, including the name or names of any underwriters, dealers or agents;
• | their offering terms, including the name or names of any underwriters, dealers or agents; |
the purchase price of the securities and the proceeds to us from such sale;any underwriting discounts, commissions and other items constituting compensation to underwriters, dealers or agents;
• | the purchase price of the securities and the proceeds to us from such sale; |
any public offering price;any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers;
• | any underwriting discounts, commissionsin the case of debt securities, the interest rate, maturity and redemption provisions; and other items constituting compensation to underwriters, dealers or agents; |
• | any public offering price; |
• | any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers; |
• | in the case of debt securities, the interest rate, maturity and redemption provisions; and |
• | any securities exchanges on which the securities may be listed. |
If underwriters or dealers are used in the sale, the securities will be acquired by the underwriters or dealers for their own account and may be resold from time to time in one or more transactions in accordance withtransactions:
at a fixed price or prices which may be changed;
at market prices prevailing at the rulestime of the New York Stock Exchange:sale;
at prices related to such prevailing market prices; or
• | at a fixed price or prices which may be changed; |
34
• | at market prices prevailing at the time of sale; |
• | at prices related to such prevailing market prices; or |
The securities may be offered to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more of such firms. Unless otherwise set forth in an applicable prospectus supplement, the obligations of underwriters or dealers to purchase the securities will be subject to certain conditions precedent and the underwriters or dealers will be obligated to purchase all the securities if any are purchased. Any public offering price and any discounts or concessions allowed or reallowed or paid by underwriters or dealers to other dealers may be changed from time to time.
Securities may be sold directly by us or the selling stockholders or through agents designated by us or the selling stockholders from time to time. Any agent involved in the offer or sale of the securities in respect of which this prospectus and a prospectus supplement is delivered will be named, and any commissions payable by us or the selling stockholders to such agent will be set forth, in the prospectus supplement. Unless otherwise indicated in the prospectus supplement, any such agent will be acting on a best efforts basis for the period of its appointment.
If so indicated in the prospectus supplement, we or the selling stockholders will authorize underwriters, dealers or agents to solicit offers from certain specified institutions to purchase securities from us or the selling stockholders at the public offering price set forth in the prospectus supplement pursuant to delayed delivery contracts providing for payment and delivery on a specified date in the future. Such contracts will be subject to any conditions set forth in the prospectus supplement and the prospectus supplement will set forth the commission payable for solicitation of such contracts. The underwriters and other persons soliciting such contracts will have no responsibility for the validity or performance of any such contracts.
Underwriters, dealers and agents may be entitled under agreements entered into with us or the selling stockholders to be indemnified by us or the selling stockholders, as applicable, against certain civil liabilities, including liabilities under the Securities Act, of 1933, or to contribution by Swiftcontribute to payments which they may be required to make. The terms and conditions of such indemnification will be described in an applicable prospectus supplement. Underwriters, dealers and agents may be customers of, engage in transactions with, or perform services for, us or the selling stockholders in the ordinary course of business.
Each class or series of securities, if any, will be a new issue of securities with no established trading market, other than the common stock, which is listed on the New York Stock Exchange.NYSE. We may elect to list any other class or series of securities on any exchange, other than the common stock, but we are not obligated to do so. Any underwriters to whom securities are sold by us or the selling stockholders for public offering and sale may make a market in such securities, but such underwriters will not be obligated to do so and may discontinue any market making at any time without notice. No assurance can be given as to the liquidity of the trading market for any securities.
Certain persons participating in any offering of securities may engage in transactions that stabilize, maintain or otherwise affect the price of the securities offered. In connection with any such offering, the underwriters or agents, as the case may be, may purchase and sell securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection with the offering. Stabilizing transactions consist of certain bids or purchases for the purpose of preventing or retarding a decline in the market price of the securities; and syndicate short positions involve the sale by the underwriters or agents, as the case may be, of a greater number of securities than they are required to purchase from us or the selling stockholders, as the case may be, in the offering. The underwriters may also impose a penalty bid, whereby selling concessions allowed to syndicate members or other broker-dealers for the securities sold for their account may be reclaimed by the syndicate if such securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the securities, which may be higher than the price that might otherwise prevail in the open market, and if commenced, may be discontinued at any time. These transactions may be effected on the New York Stock Exchange, in the over-the-counter marketNYSE or otherwise. These activities will be described in more detail in the sections entitled “Plan of Distribution” or “Underwriting” in the applicable prospectus supplement.
SELLING STOCKHOLDERS
Legal mattersThe selling stockholders named below may offer and sell from time to time in the future up to an aggregate of 7,422,178 shares of our common stock, par value $0.01 per share. The term “selling stockholders” includes the stockholders listed in the table below and their transferees, pledgees, donees, assignees or other successors.
Our counsel, Baker & Hostetler LLP, Houston, Texas, will passWe are registering these 7,422,178 shares of our common stock for sale by the selling stockholders named below pursuant to (1) the Noteholder Registration Rights Agreement between us and parties who received shares of our common stock upon the Effective Date representing 5% or more of the common stock outstanding on that date and (2) a registration rights agreement, dated as of January 26, 2017 (the “PIPE Registration Rights Agreement” and, together with the Noteholder Registration Rights Agreement, the “Registration Rights Agreements”), which we entered into with certain legal matterspurchasers in connection with a private placement of shares of our common stock.
Pursuant to the Registration Rights Agreements, we will pay all expenses relating to the offering of these shares, except that the selling stockholders will pay any underwriting discounts or commissions. We will indemnify the selling stockholders against liabilities, including liabilities under the Securities Act. We may be indemnified by the selling stockholders against civil liabilities, including liabilities under the Securities Act, which may arise from any written information furnished to us by the selling stockholders specifically for use in this prospectus.
The following table sets forth information as of May 22, 2020, by each selling stockholder regarding the beneficial ownership of shares of our common stock and the number of shares of our common stock that may from time to time be offered securities. Any underwritersor sold pursuant to this prospectus. The information regarding shares beneficially owned after the offering assumes the sale of all shares offered by the selling stockholders and that the selling stockholders do not acquire any additional shares. Information in the table below with respect to beneficial ownership has been furnished by each of the selling stockholders with regard to the shares offered pursuant to the Registration Rights Agreements.
Information concerning the selling stockholders may change from time to time and any changed information will be advised about other issues relatingset forth in supplements to this prospectus, if and when necessary. The selling stockholders may offer all, some or none of their shares of common stock. We cannot advise you as to whether the selling stockholders will in fact sell any or all of such shares of common stock. In addition, the selling stockholders listed in the table below may have sold, transferred or otherwise disposed of, or may sell, transfer or otherwise dispose of, at any time and from time to time, shares of our common stock in transactions exempt from the registration requirements of the Securities Act after the date on which they provided the information set forth in the table below.
|
| | | | | | |
| Name of Selling Stockholder | Shares of Common Stock Beneficially Owned Prior to Offering(1) | Total Number of Shares of Common Stock Being Offered | Shares of Common Stock Beneficially Owned After Offering(2) | Percentage of Common Stock Beneficially Owned After Offering(2) |
| SVMF 71, LLC(3) | 4,476,462 | 4,476,462 | — |
| — |
|
| Pentwater Capital Management LP(4) | 501,698 | 501,698 | — |
| — |
|
| BOF Holdings IV, LLC(5) | 840,147 | 720,776 | 119,371 |
| * |
|
| DW Partners, LP(6) | 1,852,755 | 1,723,242 | 129,513 |
| * |
|
| |
| (1) | We have determined beneficial ownership in accordance with the rules of the SEC. Except as indicated by the footnotes below, we believe, based on the information furnished to us, that the selling stockholders named in the table above have sole voting and investment power with respect to all shares of common stock that they beneficially own. |
| |
| (2) | This calculation assumes that all common stock owned by a selling stockholder will be sold in the offering. |
| |
| (3) | Mr. Victor Khosla is the sole member of Midwood Holdings, LLC, which is the managing member of SVP and is also the indirect majority owner and control person of SVP, SVP Special Situations III LLC and SVP Special Situations III-A LLC. |
SVP is (i) the investment manager of Strategic Value Master Fund, Ltd., which has an ownership interest in SVMF 70, LLC, which has an ownership interest in SVMF 71, LLC, (ii) the managing member of SVP Special Situations III LLC, which is the investment manager of Strategic Value Special Situations Master Fund III, L.P., which has an ownership interest in SVMF 70, LLC, which has an ownership interest in SVMF 71, LLC, and (iii) the managing member of SVP Special Situations III-A LLC, which is the investment manager of Strategic Value Opportunities Fund, L.P., which has an ownership interest in SVMF 71, LLC. David Geenberg and Christoph Majeske, employees of SVP, are members of the Board of SilverBow Resources. Neither Messrs. Geenberg or Majeske are employees of SVMF 71, LLC or employees of SVP’s funds. Pursuant to the Director Nomination Agreement, dated as of April 22, 2016, by and among SilverBow Resources and the consenting noteholders named therein, SVP currently has the right to designate two directors to the Board of SilverBow Resources. Please read “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws” for more information.
| |
| (4) | Mr. Matthew Charles Halbower is the Chief Executive Officer of Pentwater Capital Management LP, the investment advisor of various funds that hold common stock of SilverBow Resources. As such, Mr. Halbower may be deemed to have voting and dispositive power over the shares of common stock held by such funds. Pursuant to the Director Nomination Agreement, dated as of April 22, 2016, by and among SilverBow Resources and the consenting noteholders named therein, Pentwater Capital Management LP currently has the right, together with the other consenting noteholders named therein, to designate two directors to the Board of SilverBow Resources. Please read “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws” for more information. |
| |
| (5) | Messrs. Anthony Tamer and Sami Mnaymneh are the sole stockholders, co-presidents, directors and shareholders of H.I.G.-GPII, Inc., the manager of H.I.G. Bayside Loan Advisors IV, LLC, the general partner of H.I.G. Bayside Loan Opportunity Fund IV, L.P., the sole member of BOF Holdings IV, LLC and as such may be deemed to have voting and dispositive power over the shares of common stock held by BOF Holdings IV, LLC. Pursuant to the Director Nomination Agreement, dated as of April 22, 2016, by and among SilverBow Resources and the consenting noteholders named therein, BOF Holdings IV, LLC currently has the right, together with the other consenting noteholders named therein, to designate two directors to the Board of SilverBow Resources. Please read “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws” for more information. |
| |
| (6) | Mr. David Warren is the Chief Executive Officer and Chief Investment Officer of DW Partners, LP, the investment manager of various funds that hold common stock of SilverBow Resources. As such, Mr. Warren may be deemed to have voting and dispositive power over the shares of common stock held by such funds. Pursuant to the Director Nomination Agreement, dated as of April 22, 2016, by and among SilverBow Resources and the consenting noteholders named therein, DW Catalyst Master Fund, Ltd., to which DW Partners, LP is the investment manager, currently has the right, together with the other consenting noteholders named therein, to designate two directors to the Board of SilverBow Resources. Please read “Description of Capital Stock—Anti-Takeover Effects of Delaware Law, Our Certificate of Incorporation and Our Bylaws” for more information. |
LEGAL MATTERS
The validity of the securities offered by this prospectus will be passed upon for us by Vinson & Elkins L.L.P., Houston, Texas. Legal counsel to any offering by theirunderwriters may pass upon legal counsel.matters for such underwriters.
ExpertsEXPERTS
The consolidated financial statements as of Swift Energy Company appearing in Swift Energy Company's Annual Report (Form 10-K)December 31, 2019 and 2018 and for the yearyears then ended December 31, 2008, and management's assessment of the effectiveness of Swift Energy Company’s internal control over financial reporting as of December 31, 2008 included therein,2019 incorporated by reference in this prospectus have been audited by Ernst & Youngso incorporated in reliance on the reports of BDO USA, LLP, an independent registered public accounting firm, as set forth in their reports thereon, included therein, and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference, in reliance upon such reports given on the authority of suchsaid firm as experts in accountingauditing and auditing.
accounting.
Information set forth or incorporated by reference in this prospectus regarding our estimated quantities of oil and gas reserves and the discounted present value of future net cash flows therefrom is based upon estimates of such reserves and present values auditedin the report prepared by H.J. Gruy &and Associates, Inc., independent petroleum engineers. All such information has been so included on the authority of such firms as expertsexpert regarding the matters contained in its reports.
Part II
Information not requiredNot Required in prospectusProspectus
Item 14. Other Expenses of Issuance and Distribution
| |
| Item 14. | Other Expenses of Issuance and Distribution |
The following table sets forth the costs and expenses payable by SwiftSilverBow Resources in connection with the sale of securities being registered hereby. All amounts are estimates, except the registration fee.
|
| | | | |
| Item | Amount | |
| SEC registration fee | $ | 55,583.67 |
| (1) |
| Accounting fees and expenses | * |
| |
| Legal fees and expenses | * |
| |
| Trustees’ fees and expenses | * |
| |
| Printing and engraving expenses | * |
| |
| Listing fees | * |
| |
| Miscellaneous | * |
| |
| Total | * |
| |
| Item | | Amount |
| SEC registration fee | | $ | 27,900 | |
| Accounting fees and expenses | | | 175,000 | * |
| Legal fees and expenses | | | 200,000 | * |
| Trustees’ fees and expenses | | | 20,000 | * |
| Printing expenses | | | 150,000 | * |
| Rating agency fees | | | 125,000 | * |
| Miscellaneous | | | 52,100 | * |
| Total | | | 750,000 | * |
| |
| * | Estimates solely forThese fees are calculated based on the number of issuances and amount of securities offered and accordingly cannot be estimated at this item. Actual expenses may vary.time. |
Item 15. | |
| Item 15. | Indemnification of Officers and Directors |
Delaware General Corporation Law
The Company has the authority under Articles 2.02(A)(16) and 2.02-1Section 145(a) of the Texas Business Corporation ActDGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with the action, suit or proceeding if he acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Section 145(b) of the DGCL provides that a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of the action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which the person shall have been adjudged to be liable to the corporation unless and only to the extent that the Delaware Court of Chancery or the court in which the action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the person is fairly and reasonably entitled to indemnity for the expenses which the Delaware Court of Chancery or such other court shall deem proper.
Section 145(c) of the DGCL provides that to the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in
Section 145(a) and (b), or in defense of any claim, issue or matter therein, the person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by the person in connection therewith.
Section 145(d) of the DGCL provides that any indemnification under Section 145(a) and (b) (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in Section 145(a) and (b). The determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
Section 145(e) of the DGCL provides that expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of the director or officer to repay such amount if it shall ultimately be determined that the person is not entitled to be indemnified by the corporation as authorized in Section 145. The expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon those terms and conditions, if any, as the corporation deems appropriate.
Section 145(f) of the DGCL provides that the indemnification and advancement of expenses provided by, or granted pursuant to, Section 145 shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise.
Section 145(g) of the DGCL provides that a corporation shall have the power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against the person and incurred by the person in any such capacity, or arising out of the person’s status as such, whether or not the corporation would have the power to indemnify the person against such liability under Section 145.
Section 145(k) of the DGCL provides that the indemnification and advancement of expenses provided by, or granted in accordance with, Section 145 shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
Certificate of Incorporation
Article XI of the Certificate of Incorporation provides that the Company’s directors shall not be personally liable to the Company or any of its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent provided forsuch elimination or limitation of liability is not permitted under the.
Article XV of the Certificate of Incorporation provides that each person who at any time is or was a director or officer of the Company, or any person who, while a director or officer of the Company, is or was serving at the Company’s request as a director, officer, employee or agent of another corporation, partnership (limited or general), joint venture, trust, enterprise or nonprofit entity (including service with respect to employee benefit plans), shall be entitled to (1) indemnification and (2) the advancement of expenses incurred by such person in such statute. Swift’s Bylaws provide for indemnificationdefending any proceeding in advance of its officers, directorsfinal disposition from the Company as, and employees to the fullest extent, permitted by applicable laws. The rights conferred in Article 2.02-1XV of the Texas Business Corporation Act. With shareholder approval, Swift amended its ArticlesCertificate of Incorporation to confirm that Swiftare not exclusive of any other right which any person may have or hereafter acquire under any statute, other provision of the Certificate of Incorporation, Bylaws, a separate agreement, vote of stockholders or disinterested directors or otherwise.
Indemnification Agreements
The Company has the power to indemnify certain persons in such circumstances as are provided in its Bylaws. The amendment allows Swift to enter into additional insurance and indemnity arrangements at the discretion of Swift’s board of directors. Swift has also entered into individual indemnification agreements with eachits directors and certain of its officers and directors. Theseofficers. Under the terms of the indemnification agreements, the Company has generally agreed to indemnify such officers and directorsan officer or director for liabilities incurred to the fullest extent permitted by the DGCL. Also, as permitted under Delaware law, against risksthe indemnification agreements require the Company to advance expenses in defending any such action provided that the director or executive officer undertakes to repay the amounts if the person ultimately is determined not to be entitled to indemnification from the Company.
Directors’ and Officers’ Liability Insurance
The Nomination Agreement provides that the Company shall use its reasonable best efforts to maintain in effect at all times directors and officers indemnity insurance coverage reasonably satisfactory to SVP and the Consenting Noteholders. As a result, the Company maintains directors’ and officers’ liability insurance.
The above discussion of claims and actions against them arising out of their service to and activities on behalfSection 145 of the Company..
Article 1302-7.06(B) ofDelaware General Corporation Law, the Texas Miscellaneous Corporation Laws Act provides that a corporation’s articles of incorporation may provide for the elimination or limitation of a director’s liability. Swift’s ArticlesCertificate of Incorporation, eliminate the indemnification agreements and the Company’s maintenance of directors’ and officers’ liability of directorsinsurance is not intended to the corporation orbe exhaustive and is qualified in its shareholders for monetary damages for an act or omission in his capacity as a director, with certain specified exceptionsentirety by reference to Swiftsuch statute and its shareholders to the fullest extent permitted by Article 1302-7.06(B)(1-4) of the Texas Miscellaneous Corporation Laws Act.each respective document.
We also maintain insurance to cover amounts that we may be required to pay officers and directors under the indemnity provisions described above and coverage for its officers and directors against certain liabilities, including certain liabilities under the federal securities law.
Item 16. Exhibits
|
| |
Exhibit No.Number | | Document Description |
* | 1.1 | 1.1* | Form of Underwriting AgreementAgreement. |
**3.1 | |
| 3.2 | |
| 4.1 | |
| 4.2** | |
| 4.3** | |
* | 4.2 | 4.4* | Form of Certificate of Designation for Preferred Stock, including Specimen CertificateCertificate. |
* | 4.3 | 4.5* | Form of Depositary Agreement between Swift Energy CompanySilverBow Resources, Inc. and Depositary to be designated therein covering Depositary Shares to be offered hereunder, including Form of Depositary Receipt attached theretothereto. |
* | 4.4 | 4.6* | Form of Warrant Agreement and Trustee to be designated therein covering Common Stock Warrants to be offered hereunder, including Form of Common Stock Warrant attached theretothereto. |
* | 4.5 | 4.7* | Form of Warrant Agreement and Trustee to be designated therein covering Preferred Stock Warrants to be offered hereunder, including Form of Preferred Stock Warrant attached theretothereto. |
| 4.8 | 4.6 | | Amended |
| 4.9 | 4.7 | | Assignment, Assumption, AmendmentRegistration Rights Agreement, dated as of April 22, 2016, by and Novation Agreement between Swift Energy Company, Newamong Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent effective at 9:00 a.m. local time in Austin, Texas on December 28, 2005the stockholders party thereto (incorporated by reference asto Exhibit 4.410.1 to Swift Energythe Company’s Current Report on Form 8-K filed December 29, 2005,with the SEC on April 28, 2016, File No. 1-08754)001-08754). |
|
| 4.8 |
| Exhibit Number | Description |
| 4.10 | Amendment No. 1 to the |
| 4.9 | | Amendment No. 2 to the Rights Agreement dated December 21, 2006 between Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference as Exhibit 4.1 to Swift Energy Company’s Form 8-K filed December 22, 2006, File No. 1-08754) |
*5.1** | 5 | | |
*23.1** | 12 | | Computation |
*23.2** | 23.1 |
| 23.3** | | |
**24.1** | 23.2 | | Consent of Ernst & Young LLP |
** | 23.3 | | Consent of Baker & Hostetler LLP (included in Exhibit 5) |
** | 24 | | |
** | 25 | 25.1† | Form T-1 Statement of Eligibility and Qualification of Wells Fargo Bank, National Association, Trustee forunder Trust Indenture Act of 1939, as amended, respecting the debt securitiesSenior Indenture. |
| 25.2† | Form T-1 Statement of Eligibility and Qualification of Trustee under Trust Indenture Act of 1939, as amended, respecting the Subordinated Indenture. |
| |
| * | To be filed, if necessary, by amendment or as an exhibit to a current report on Form 8-K of the registrantCompany. |
| |
| ** | Previously filedFiled herewith. |
*** Filed herewith
Item 17. Undertakings
| |
| † | To be filed under subsection (a) of Section 310 of the Trust Indenture Act of 1939, as amended. |
(a) Each undersigned registrant hereby undertake:
undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by sectionSection 10(a)(3) of the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the CommissionSEC pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than 20% change in the maximum aggregate offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
(iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement.
statement;
provided, however, that paragraphs (a)(1)(i), (a)(1)(ii) and (a)(1)(ii)(iii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the SEC by the registrants pursuant to sectionSection 13 or sectionSection 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement, or is contained in a form of prospectus filed pursuant to Rule 424(b) that is part of the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any purchaser:
(i) Each prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to be part of the registration statement as of the date the filed prospectus was deemed part of and included in the registration statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as part of a registration statement in reliance on Rule 430B relating to an offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the purpose of providing the information required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and included in the registration statement as of the earlier of the date such form of prospectus is first used after effectiveness or the date of the first contract of sale of securities in the offering described in the prospectus. As provided in Rule 430B, for liability purposes of the issuer and any person that is at that date an underwriter, such date shall be deemed to be a new effective date of the registration statement relating to the securities in the registration statement to which the prospectus relates, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such effective date, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such effective date.
(5) That, for the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, each undersigned registrant undertakes that in a primary offering of securities of aan undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
(b) Each undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Each undersigned registrant hereby undertakes to supplement the prospectus, after the expiration of the subscription period to set forth the results of the subscription offer, the transactions by the underwriters during the subscription period, the amount of unsubscribed securities to be purchased by the underwriters, and the terms of any subsequent reoffering thereof. If any public offering by the underwriters is to be made on terms differing from those set forth on the cover page of the prospectus, a post-effective amendment will be filed to set forth the terms of such offering.
(d) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of each registrant pursuant to the foregoing provisions, or otherwise, each registrant has been advised that in the opinion of the Securities and Exchange CommissionSEC such indemnification is against public policy as expressed
in the Securities Act of 1933 and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by a registrant of expenses incurred or paid by a director, officer or controlling person of a registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, that registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
(e)(d) Each undersigned registrant hereby undertakes to file an application for the purpose of determining the eligibility of the trustee to act under subsection (a) of Section 310 of the Trust Indenture Act (“Act”) in accordance with the rules and regulations prescribed by the CommissionSEC under Section 305(b) 2(2) of the Act.
Signatures
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Amendment No. 2 to Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, June 25, 2009.on May 29, 2020.
| SWIFT ENERGY COMPANY |
| By: | /s/ Terry E. Swift
|
| | Terry E. Swift
Chairman of the Board and Chief Executive Officer
|
SILVERBOW RESOURCES, INC.
By: /s/ Sean C. Woolverton
Name: Sean C. Woolverton
Title: Chief Executive Officer and Director
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below authorizes and appoints Sean C. Woolverton and Christopher M. Abundis as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead in any and all capacities to sign any and all amendments (including pre- and post-effective amendments) to this registration statement and any additional registration statement pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact or agent, or his substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statementregistration statement has been signed by the following persons in the capacities andheld on the dates indicated, in multiple counterparts with the effect of one original.
Signatures |
| |
| Signature | Title | Date |
| | |
| /s/ Sean C. Woolverton | Chief Executive Officer and Director |
| Sean C. Woolverton | (principal executive officer) |
| |
/s/ Terry E. Swift Christopher M. Abundis | Executive Vice President, Chief Financial Officer, General Counsel & Secretary |
| Christopher M. Abundis | (principal financial officer) |
| |
| /s/ W. Eric Schultz | Controller |
| W. Eric Schultz | |
| |
| /s/ Marcus C. Rowland | Chairman of the Board andChief Executive Officer
(Principal Executive Officer)
| June 25, 2009 |
Terry E. SwiftMarcus C. Rowland | |
| |
| /s/ Michael Duginski | Director |
| Michael Duginski | |
| |
| /s/ Gabriel L. Ellisor | Director |
| Gabriel L. Ellisor | |
| |
| /s/ David Geenberg | Director |
| David Geenberg | |
| |
| /s/ Christoph O. Majeske | Director |
| Christoph O. Majeske | |
| |
| /s/ Charles W. Wampler | Director |
| Charles W. Wampler | |
| | |
| | | |
/s/ Bruce H. Vincent*
| President and Director | June 25, 2009 |
Bruce H. Vincent* | | |
| | |
/s/ Alton D. Heckaman, Jr.
| Executive Vice President and
Chief Financial Officer
(Principal Financial Officer)
| June 25, 2009 |
Alton D. Heckaman, Jr. | | |
| | |
/s/ David W. Wesson*
| Controller
(Principal Accounting Officer)
| June 25, 2009 |
David W. Wesson* | | |
| | |
/s/ Deanna L. Cannon*
| Director | June 25, 2009 |
Deanna L. Cannon* | | |
| | |
/s/ Raymond E. Galvin*
| Director | June 25, 2009 |
Raymond E. Galvin* | | |
| | |
/s/ Douglas J. Lanier*
| Director | June 25, 2009 |
Douglas J. Lanier* | | |
| | |
| | |
/s/ Greg Matiuk*
| Director | June 25, 2009 |
Greg Matiuk* | | |
| | |
/s/ Henry C. Montgomery*
| Director | June 25, 2009 |
Henry C. Montgomery* | | |
| | |
/s/ Clyde W. Smith, Jr.*
| Director | June 25, 2009 |
Clyde W. Smith, Jr.* | | |
| | |
/s/ Charles J. Swindells*
| Director | June 25, 2009 |
Charles J. Swindells* | | |
| | |
/s/ Alton D. Heckaman, Jr.
| *Attorney-in-fact pursuant to a power of attorney contained in the original filing of this Registration Statement | June 25, 2009 |
Alton D. Heckaman, Jr.
| | |
Signatures
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrantregistrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Amendment No. 2 to Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Houston, State of Texas, June 25, 2009on May 29, 2020.
| SWIFT ENERGYSILVERBOW RESOURCES OPERATING, LLC |
| By: | /s/ Terry E. Swift
|
| | Terry E. Swift
Chairman of the Board and Chief Executive Officer
|
By: /s/ Sean C. Woolverton
Name: Sean C. Woolverton
Title: Chief Executive Officer and President
KNOWN ALL PERSONS BY THESE PRESENTS, that each person whose signature appears below authorizes and appoints Sean C. Woolverton and Christopher M. Abundis as his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead in any and all capacities to sign any and all amendments (including pre- and post-effective amendments) to this registration statement and any additional registration statement pursuant to Rule 462(b) under the Securities Act of 1933, and to file the same with all exhibits thereto, and other documents in connection therewith, with the SEC, granting unto said attorney-in-fact and agent full power and authority to do and perform each and every act and thing requisite and necessary to be done, as fully and to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorney-in-fact or agent, or his substitute or substitutes, may lawfully do or cause to be done.
Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed by the following persons in the capacities andheld on the dates indicated, in multiple counterparts with the effect of one original.
May 29, 2020.
Signatures |
| |
| Signature | Title | Date |
| | | |
/s/ Terry E. Swift Sean C. Woolverton | Chairman of the Board,
Chief Executive Officer and Manager (Principal Executive Officer)
| June 25,, 2009President |
Terry E. SwiftSean C. Woolverton | (principal executive officer) |
| | |
| /s/ Christopher M. Abundis | Executive Vice President, Chief Financial Officer, General Counsel, Secretary and Treasurer |
| Christopher M. Abundis | (principal financial officer) |
| | |
/s/ Bruce H. Vincent* W. Eric Schultz | President and Manager | June 25, 2009Controller |
Bruce H. Vincent* | | |
| | |
/s/ Alton D. Heckaman, Jr.
| Executive Vice President,
Chief Financial Officer and Manager
(Principal Financial Officer)
| June 25, 2009 |
Alton D. Heckaman, Jr. | | |
| | |
/s/ David W. Wesson*
| Controller
(Principal Accounting Officer)
| June 25, 2009 |
David W. Wesson* | | |
| | |
/s/ Alton D. Heckaman, Jr.
| *Attorney-in-fact pursuant to a power of attorney contained in the original filing of this Registration Statement | June 25, 2009 |
Alton D. Heckaman, Jr.
| Eric Schultz | |
Index to exhibits
Exhibit No. | | Document Description |
* | 1.1 | | Form of Underwriting Agreement |
** | 4.1 | | Indenture between Swift Energy Company and Wells Fargo Bank National Association, Trustee, covering debt securities to be offered hereunder, including Form of Note or Debenture attached thereto |
* | 4.2 | | Form of Certificate of Designation for Preferred Stock, including Specimen Certificate |
* | 4.3 | | Form of Depositary Agreement between Swift Energy Company and Depositary to be designated therein covering Depositary Shares to be offered hereunder, including Form of Depositary Receipt attached thereto |
* | 4.4 | | Form of Warrant Agreement and Trustee to be designated therein covering Common Stock Warrants to be offered hereunder, including Form of Common Stock Warrant attached thereto |
* | 4.5 | | Form of Warrant Agreement and Trustee to be designated therein covering Preferred Stock Warrants to be offered hereunder, including Form of Preferred Stock Warrant attached thereto |
| 4.6 | | Amended and Restated Rights Agreement between Swift Energy Company and American Stock Transfer & Trust Company, dated March 31, 1999 (incorporated by reference to Swift Energy Company’s Amendment No. 1 to Form 8-A filed April 7, 1999, File No. 1-08754) |
| 4.7 | | Assignment, Assumption, Amendment and Novation Agreement between Swift Energy Company, New Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent effective at 9:00 a.m. local time in Austin, Texas on December 28, 2005 (incorporated by reference as Exhibit 4.4 to Swift Energy Company’s Form 8-K filed December 29, 2005, File No. 1-08754). |
| 4.8 | | Amendment No. 1 to the Rights Agreement dated December 12, 2005 between Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference as Exhibit 4.3 to Swift Energy Company’s Form 8-K filed December 29, 2005, File No. 1-08754) |
| 4.9 | | Amendment No. 2 to the Rights Agreement dated December 21, 2006 between Swift Energy Company and American Stock Transfer & Trust Company, as Rights Agent (incorporated by reference as Exhibit 4.1 to Swift Energy Company’s Form 8-K filed December 22, 2006, File No. 1-08754) |
** | 5 | | Opinion of Baker & Hostetler LLP, as to the legality of the securities being registered |
** | 12 | | Computation of Ratio of Earnings to Fixed Charges |
** | 23.1 | | Consent of H.J. Gruy and Associates, Inc. |
*** | 23.2 | | Consent of Ernst & Young LLP |
** | 23.3 | | Consent of Baker & Hostetler LLP (included in Exhibit 5) |
** | 24 | | Power of Attorney (included on signature page) |
** | 25 | | Form T-1 Statement of Eligibility of Wells Fargo Bank, National Association, Trustee for the debt securities |
* | To be filed as an exhibit on Form 8-K of the registrant |
** | Previously filed |
*** Filed herewith
