Exhibit 2.1
PLAN AND AGREEMENT AND ARTICLES OF MERGER
TO FORM HOLDING COMPANY
among
SWIFT ENERGY COMPANY
NEW SWIFT ENERGY COMPANY
and
SWIFT ENERGY OPERATING, LLC
-------------------------------
Pursuant to the provisions of Article 5.03.H and Article 5.04 of the Texas
Business Corporation Act ("TBCA"), and Article 10.03 of the Texas Limited
Liability Company Act ("TLLCA"), the undersigned corporations and limited
liability company certify the following Plan and Agreement and Articles of
Merger to Form Holding Company, adopted for the purpose of effecting a merger in
accordance with the provisions of Part Five of the TBCA and Part Ten of the
TLLCA.
-------------------------------
THIS PLAN AND AGREEMENT AND ARTICLES OF MERGER TO FORM HOLDING COMPANY
(this "Plan"), dated as of December 16, 2005 and effective at the Effective
Time, as defined in Section 1.2 of this Plan, is by and among Swift Energy
Company, a Texas corporation ("Old Swift"), New Swift Energy Company, a Texas
corporation and a wholly owned subsidiary of Old Swift ("New Swift"), and Swift
Energy Operating, LLC, a Texas limited liability company and a wholly owned
subsidiary of New Swift ("Merger Sub").
WHEREAS, Old Swift has an authorized capitalization consisting of: (i)
85,000,000 shares of common stock, par value $.01 per share ("Old Swift Common
Stock"), and (ii) 5,000,000 shares of preferred stock, par value $.01 per share
("Old Swift Preferred Stock"), and pursuant to the provisions of Article 5.03.H
of the TBCA, shareholder approval of this Plan by the shareholders of Old Swift
is not required; and
WHEREAS, New Swift has an authorized capitalization consisting of: (i)
85,000,000 shares of common stock, par value $.01 per share ("New Swift Common
Stock"), of which 1,000 shares are issued and outstanding and are owned by Old
Swift and no shares are held in treasury; and (ii) 5,000,000 shares of preferred
stock, par value $.01 per share ("New Swift Preferred Stock"), none of which is
issued or outstanding; and
WHEREAS, the designations, preferences, limitations and relative rights of
respectively the New Swift Common Stock and the New Swift Preferred Stock are
the same as those of respectively the Old Swift Common Stock and the Old Swift
Preferred Stock; and
WHEREAS, Merger Sub has an authorized capitalization consisting of (i)
85,000,000 units of common membership interest, having a capital amount of $.01
per unit (the "Merger Sub Common Units"), of which 1,000 Merger Sub Common Units
are issued and outstanding and are owned by New Swift, and (ii) 5,000,000 units
of preferred membership interest, having a capital amount of $.01 per unit (the
"Merger Sub Preferred Units") none of which is issued and outstanding; and
WHEREAS, Old Swift has heretofore executed and delivered to the Trustee
named therein (i) the Indenture and the First Supplemental Indenture, each dated
April 16, 2002 (collectively, the "2002 Indenture"), providing for the issuance
of Old Swift's 9-3/8% Senior Subordinated Notes due 2012 and (ii) the Indenture
and the First Supplemental Indenture, each dated June 23, 2004, (collectively,
the "2004 Indenture") providing for the issuance of Old Swift's 7-5/8% Senior
Notes due 2011 (the 2002 Indenture and the 2004 Indenture collectively herein,
the "Indentures"), which Indentures are to be amended as part of the Merger,
as defined below; and
WHEREAS, the Board of Directors of Old Swift has determined it to be in the
best interests of Old Swift to effect the formation of a holding company
structure whereby Merger Sub, as the survivor of a merger between Old Swift and
Merger Sub will, immediately after the merger, be the wholly owned subsidiary of
New Swift and the shareholders of Old Swift will become the shareholders of New
Swift; and
WHEREAS, it is intended that the holding company structure be effected
without a vote of Old Swift's shareholders pursuant to and in accordance with
Article 5.03.H of the TBCA through a merger of Old Swift into Merger Sub
pursuant to Article 5.01 and Article 5.03.H of the TBCA and Article 10.01 of the
TLLCA; and
WHEREAS, the respective Boards of Directors of Old Swift and New Swift, the
Board of Managers of Merger Sub, Old Swift acting as the sole shareholder of New
Swift, and New Swift acting as the sole member of Merger Sub, have approved the
merger of Old Swift into Merger Sub (the "Merger"), the conversion of shares of
Old Swift Common Stock into shares of New Swift Common Stock provided for in
this Plan, the change of name of New Swift to "Swift Energy Company" at the
Effective Time, the other terms of this Plan, and the execution of this Plan by
each such entity; and
WHEREAS, New Swift and Merger Sub have been recently formed solely for
purposes of effecting the formation of a holding company structure through the
Merger and New Swift has at all times since its incorporation been a direct
wholly owned subsidiary of Old Swift; and
WHEREAS, for Federal income tax purposes, it is intended that the Merger
shall qualify as a tax-free reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code"), and the
rules and regulations promulgated thereunder; and
WHEREAS, the purposes of creating the holding company structure are to
separate Swift's domestic and international operations to more closely reflect
Swift Energy Company's management structure, provide more organizational
flexibility, and provide for a more equitable allocation of state taxes.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
contained in this Plan, the parties hereto agree as follows:
-2-
ARTICLE I
The Merger
Section 1.1 The Merger.
----------
(a) Upon the terms and subject to the conditions set forth in this Plan,
and in accordance with Article 5.01, Article 5.03.H and other applicable
provisions of the TBCA, and Article 10.01 and other applicable provisions of the
TLLCA, Old Swift shall be merged into Merger Sub at the Effective Time (as
defined in Section 1.2 of this Plan). At the Effective Time, the separate
corporate existence of Old Swift shall cease and Merger Sub shall continue as
the surviving entity (the "Surviving Entity") as a wholly owned subsidiary of
New Swift. Except as otherwise provided in this Plan, the Surviving Entity shall
succeed to and assume all the rights, title and interests to all real estate and
other property owned by Old Swift and all the liabilities and obligations of Old
Swift, in accordance with the TBCA and the TLLCA.
(b) At the Effective Time, by virtue of the Merger and without any action
on the part of Old Swift, New Swift, Merger Sub or the holders of any securities
of Old Swift, New Swift or Merger Sub:
(1) each issued and outstanding share of Old Swift Common Stock shall be
converted into one issued and outstanding share of New Swift Common
Stock, having the same designations, preferences, limitations and
relative rights as the converted shares of Old Swift Common Stock; and
(2) each issued but not outstanding share of Old Swift Common Stock held
in treasury by Old Swift shall be converted into one issued but not
outstanding share of New Swift Common Stock held in treasury by New
Swift, having the same designations, preferences, limitations and
relative rights as the converted shares of Old Swift Common Stock held
in treasury.
(c) Each share of New Swift Common Stock outstanding immediately prior to
the Effective Time shall, by virtue of the Merger, and without any action on the
part of Old Swift, New Swift, Merger Sub or the holders of any securities of Old
Swift, New Swift or Merger Sub, be cancelled and retired without any
consideration therefor.
(d) Each Merger Sub unit of common membership interest outstanding
immediately prior to the Effective Time shall remain issued and outstanding and
remain held by New Swift so that following the Merger New Swift continues as the
sole member of Merger Sub.
(e) From and after the Effective Time, holders of certificates formerly
evidencing Old Swift Common Stock shall cease to have any rights as shareholders
of Old Swift, except as provided by law.
(f) This Plan has been duly authorized by each of Old Swift and New Swift
by all action required by the TBCA or by their Articles of Incorporation or
Bylaws.
(g) Pursuant to Article 5.03.H of the TBCA, the approval of the Merger by
the shareholders of Old Swift is not required.
-3-
(h) This Plan has been authorized by Merger Sub by all action required by
the TLLCA or by Merger Sub's constituent documents.
Section 1.2 Effective Time. The parties shall execute and file this Plan
with the Secretary of State of the State of Texas, and shall make all other
filings or recordings required under the TBCA and the TLLCA to effectuate fully
the Merger. The Merger shall become effective at 9:00 a.m., local time in
Austin, Texas, on December 28, 2005 (the time the Merger becomes effective being
here referred to as the "Effective Time").
Section 1.3 Effects of the Merger. The Merger shall have the effects set
forth in Article 5.06 of the TBCA and Article 10.04 of the TLLCA. It is the
intent of the parties that New Swift, as of the Effective Time, be deemed a
"successor issuer" to Old Swift for all purposes under the Securities Act of
1933, as amended (the "Securities Act"), and for all purposes under the
Securities Exchange Act of 1934, as amended. For Federal income tax purposes, it
is intended that the Merger shall qualify as a tax-free reorganization under the
provisions of Section 368(a) of the Code.
Section 1.4 Articles of Incorporation, Bylaws, Articles of Organization and
Regulations.
(a) Prior to the Effective Time, New Swift will cause to be adopted by the
appropriate corporate action, and filed with the Secretary of State of the State
of Texas, Amendment No. 1 to the Articles of Incorporation of New Swift in the
form attached hereto as Exhibit A.1 which, at the Effective Time (i) will amend
New Swift's Articles of Incorporation by changing New Swift's name to "Swift
Energy Company" and (ii) otherwise will make no change to New Swift's Articles
of Incorporation. New Swift will cause to be adopted by the appropriate
corporate action, and after the Effective Time, filed with the Secretary of
State of the State of Texas, Restated Articles of Incorporation of New Swift, in
the form attached hereto as Exhibit A.2 which will restate New Swift's Articles
of Incorporation as so amended. From and after the filing of New Swift's
Restated Articles of Incorporation, such Restated Articles of Incorporation will
be the Articles of Incorporation of New Swift until thereafter changed or
amended as provided therein or under applicable law.
(b) New Swift's Board of Directors will take such action as may be
necessary to amend and restate the Bylaws of New Swift as of the Effective Time
so that from and after the Effective Time the Amended and Restated Bylaws of New
Swift in the form attached hereto as Exhibit B.1, which amend and restate New
Swift's Bylaws to reflect that its name has been changed to Swift Energy
Company, and otherwise make no change in New Swift's Bylaws, will be the Bylaws
of New Swift until thereafter changed or amended as provided therein or under
applicable law.
(c) New Swift, acting as Merger Sub's sole member, and Merger Sub's Board
of Managers, will take such action as may be necessary to: (i) amend the
Articles of Organization and/or Regulations of Merger Sub as of the Effective
Time so that from and after the Effective Time the Articles of Organization (as
amended) and the Regulations of Merger Sub, in the forms attached hereto as
Exhibits C.1 and C.2, contain the provisions required or permitted by Article
5.03.H of the TBCA, and (ii) otherwise make no change in Merger Sub's Articles
of Organization or Regulations. Merger Sub's sole member, and Member Sub's Board
-4-
of Managers will take such action as may be necessary to restate after the
Effective Time Merger Sub's Articles of Organization as so amended, in the form
attached hereto as Exhibit C.3, and such Restated Articles of Organization and
Regulations (as amended) will be the Articles of Organization and Regulations of
the Surviving Entity until thereafter changed or amended as provided therein or
under applicable law.
Section 1.5 Directors. At the Effective Time the directors of Old Swift
immediately prior to the Effective Time will be and remain the directors of New
Swift until the earlier of their resignation or removal or until their
respective successors are qualified and either duly appointed or elected in
accordance with the Articles of Incorporation and Bylaws of New Swift and
applicable law. At the Effective Time each of the Class I directors of Old Swift
immediately prior to the Effective Time will be and remain Class I directors of
New Swift whose terms, subject to the first sentence of this Section 1.5, shall
expire at the 2006 annual meeting of shareholders of New Swift. At the Effective
Time each of the Class II directors of Old Swift immediately prior to the
Effective Time will be and remain Class II directors of New Swift whose terms,
subject to the first sentence of this Section 1.5, shall expire at the 2007
annual meeting of shareholders of New Swift. At the Effective Time each of the
Class III directors of Old Swift immediately prior to the Effective Time will be
and remain Class III directors of New Swift whose terms, subject to the first
sentence of this Section 1.5, shall expire at the 2008 annual meeting of
shareholders of New Swift.
Section 1.6 Officers. At the Effective Time the officers of Old Swift
immediately prior to the Effective Time will be and remain the officers of New
Swift, in the same positions to those held in Old Swift, until the earlier of
their resignation or removal or until their respective successors are appointed
in accordance with the Bylaws of New Swift.
Section 1.7 Stock Transfers. From and after the Effective Time, there shall
be no further registration of transfers of shares of Old Swift Common Stock
thereafter on the records of Old Swift.
Section 1.8 No Surrender of Certificates. As a result of the provisions of
Section 1.4(a) of this Plan, the name of New Swift immediately following the
Effective Time will be "Swift Energy Company", which is the same name as the
corporate name of Old Swift immediately prior to the Effective Time. In
accordance with Article 5.03.K of the TBCA, until thereafter surrendered for
transfer or exchange in the ordinary course, each outstanding certificate that,
immediately prior to the Effective Time, evidenced shares of issued Old Swift
Common Stock shall be deemed and treated for all corporate purposes to evidence
the ownership of the number of shares of issued New Swift Common Stock into
which such shares of Old Swift Common Stock are converted pursuant to the
provisions of Section 1.1(b) of this Plan, and the New Swift Common Stock into
which the Old Swift Common Stock is converted in the Merger shall be represented
by the same stock certificates that previously represented such Old Swift Common
Stock. Accordingly, there will be no requirement as a result of the Merger for
surrender and exchange of the stock certificates that previously represented
shares of Old Swift Common Stock.
-5-
ARTICLE II
Certain Covenants and Agreements
Section 2.1 Assumed Plans.
-------------
(a) At the Effective Time, New Swift shall adopt and assume all of the
rights and obligations of Old Swift under all of the employee benefit plans of
Old Swift, including, but not limited to, the various plans, policies, programs
and other arrangements for the benefit of its employees, non-employee directors,
and/or employees of other participating employers and which shall specifically
include the following: the Swift Energy Company 2005 Stock Compensation Plan,
the Swift Energy Company 2001 Omnibus Stock Compensation Plan, Swift Energy
Company Employee Savings Plan, Swift Energy Company 1990 Nonqualified Stock
Option Plan, as amended, Swift Energy Company 1990 Stock Compensation Plan, as
amended, Swift Energy Company Employee Stock Purchase Plan, Swift Energy Company
Employee Stock Ownership Plan, Swift Energy Company 401(k) Plan, as all of the
same have been amended and are in effect as of the Effective Time (the "Assumed
Plans"). New Swift shall adopt the Assumed Plans as its own, and shall continue
such plans in accordance with their terms. New Swift shall permit other
participating employers affiliated with New Swift to participate in the Assumed
Plans in the same manner as such employers participated as of or before the
Effective Time in such Assumed Plans.
(b) At the Effective Time, the number of authorized but unissued shares of
New Swift Common Stock reserved for future grants or stock issuances under any
of the Assumed Plans shall equal the number of authorized but unissued shares of
Old Swift Common Stock formerly reserved for issuance for such purposes by Old
Swift immediately prior to the Effective Time.
(c) At the Effective Time, each issued and outstanding option or other
right to purchase shares of Old Swift Common Stock (each an "Old Swift Stock
Option") shall be converted into an option to purchase the same number of shares
of New Swift Common Stock on the same terms and conditions as the converted Old
Swift Stock Option.
Section 2.2 Indentures. At the Effective Time, Old Swift, New Swift and the
Trustees (the "Trustees") under the Indentures, shall each deliver an executed
Second Supplemental Indenture pursuant to Section 10.01 of the respective
Indentures, without the consent of the holders of the notes issued under the
Indentures (the "Notes"), providing for the assumption of, and agreement to
become obligated under, the Indentures and the Notes by New Swift and Merger
Sub.
Section 2.3 Additional Actions. Subject to the terms of this Plan, and in
addition to the actions described in Sections 2.1 and 2.2 above and the
circumstances resulting from the effects set forth in Articles 5.06 of the TBCA
and Article 10.04 of the TLLCA, the parties hereto shall take all such
reasonable and lawful action as may be necessary or appropriate in order to
effectuate the Merger, carry out the intents and purposes of this Plan, and
evidence the assignments to and assumptions by New Swift or the Merger Sub of
such rights, interests, obligations and liabilities of Old Swift as Old Swift,
New Swift and/or the Merger Sub determine to be necessary or appropriate. If, at
any time after the Effective Time, Merger Sub shall consider or be advised that
any deeds, bills of sale, assignments, assurances or any other actions or things
are necessary or desirable to vest, perfect or confirm, of record or otherwise,
-6-
in Merger Sub its right, title or interests to all such real estate and other
property either of Merger Sub or Old Swift acquired or to be acquired by Merger
Sub as a result of, or in connection with, the Merger or otherwise to carry out
the intents and purposes of this Plan, the officers and managers of Merger Sub
shall be authorized to execute and deliver, in the name and on behalf of each of
Merger Sub and Old Swift, all such agreements, deeds, bills of sale, assignments
and assurances and to take and do, in the name and on behalf of each of Merger
Sub and Old Swift or otherwise, all such other actions and things as may be
necessary or desirable to vest, perfect or confirm any and all right, title and
interests to all such real estate and other property in Merger Sub, or otherwise
to carry out the intents and purposes of this Plan.
Section 2.4 Compliance with Article 5.03.H of the TBCA. Prior to the
Effective Time, the parties will take all steps necessary to comply with Article
5.03.H of the TBCA, including without limitation, the following:
(a) to assure that immediately following the Effective Time, the Amended
Articles of Incorporation of New Swift, Certificate of Designation of Series A
Junior Participating Preferred Stock of New Swift and the Amended Bylaws of New
Swift shall, except for variations permitted by Article 5.03.H of the TBCA,
contain provisions identical to the provisions of the Amended and Restated
Articles of Incorporation, Certificate of Designation of Series A Junior
Participating Preferred Stock and Third Amended and Restated Bylaws of Old Swift
as in effect immediately prior to the Effective Time, with only non-material
additions or deletions necessitated by the circumstances;
(b) to assure that immediately following the Effective Time, the directors
of Old Swift immediately prior to the Effective Time shall be the directors of
New Swift, until the earlier of their resignation or removal or until their
respective successors are duly qualified and either appointed or elected in
accordance with the Articles of Incorporation and Bylaws of New Swift then in
effect and applicable law; and
(c) to assure that immediately following the Effective Time, the Articles
of Organization and Regulations of Merger Sub, as amended, shall, except for
variations permitted or required by Article 5.03.H of the TBCA, contain
provisions identical to the provisions of the Amended and Restated Articles of
Incorporation, Certificate of Designation of Series A Junior Participating
Preferred Stock and Third Amended and Restated Bylaws of Old Swift as in effect
immediately prior to the Effective Time, with only non-material additions or
deletions necessitated by the circumstances.
Section 2.5 Reservation of Shares. At or prior to the Effective Time, New
Swift will reserve sufficient authorized but unissued shares of New Swift Common
Stock to provide for the issuance of New Swift Common Stock upon the exercise of
all stock options (including but not limited to those converted under Section
2.1(c) above), or other rights to purchase shares of Old Swift common stock, or
in satisfaction of other benefits payable or outstanding under the Assumed
Plans, including those enumerated in Section 2.1 above, and sufficient
authorized but unissued shares of New Swift preferred stock to provide for
issuance of preferred shares under the Rights Agreement (as defined in Section
2.8).
-7-
Section 2.6 Further Assurances. From time to time, as and when requested by
another party hereto, a party hereto shall execute and deliver, or cause to be
executed and delivered, all such documents and instruments and shall take, or
cause to be taken, all such further actions as such other party may reasonably
deem necessary or desirable to consummate the transactions contemplated by this
Plan.
Section 2.7 Consummation of the Merger. Subject to the terms and conditions
of this Plan, each party shall use its commercially reasonable efforts to cause
the Merger to occur upon the terms hereof.
Section 2.8 Rights Agreement. At the Effective Time, Old Swift shall assign
to New Swift, and New Swift shall expressly assume, all of the rights and
obligations of Old Swift under that certain Rights Agreement dated as of August
1, 1997, as amended and restated as of March 31, 1999, and as amended by
Amendment No. 1 to Rights Agreement dated as of December 12, 2005 (as amended,
the "Rights Agreement"). Effective as of the Effective Time, Old Swift, New
Swift and the Rights Agent shall amend the Rights Agreement and the Rights (as
defined in the Rights Agreement), including by execution of an Assignment,
Assumption, Amendment and Novation Agreement to Rights Agreement ("Assignment
and Assumption") so that New Swift shall expressly assume all of Old Swift's
obligations under the Rights Agreement and shall be substituted in the place and
stead of Old Swift with respect to the Rights Agreement and the Rights and shall
be entitled to enforce all of the rights and interests of Old Swift under the
Rights Agreement and the Rights, and the Rights Agent shall consent to and agree
to such assignment and assumption, and Old Swift shall be released from its
covenants and obligations with respect to the Rights Agreement and the Rights,
and all of the covenants and provisions of the Rights Agreement by or for the
benefit of Old Swift shall bind and inure to the benefit of New Swift, as
assigned from Old Swift. As a result of the foregoing and the conversion of the
Old Swift Common Stock into New Swift Common Stock by virtue of the consummation
of the Merger, after the Effective Time, the outstanding Rights shall be
evidenced by the certificates for New Swift Common Stock registered in the names
of the holders thereof and shall be transferable only in connection with the
transfer of New Swift Common Stock, prior to the Distribution Date (as defined
in the Rights Agreement), all in accordance with the amended Rights Agreement.
Section 2.9 Forms W-2 and 1099. Merger Sub agrees to file and prepare Forms
W-2 and 1099, and any similar or related information reporting tax returns or
forms, of Old Swift, or pertaining to Old Swift, in each case for the 2005 tax
year. Old Swift will transfer to Merger Sub all employment, payroll and
information reporting forms, documents and records, including, without limiting
the generality of the foregoing, Forms W-4.
Section 2.10 Employment Agreements. At the Effective Time, the written
employment agreements between Old Swift and those of its officers who have
entered into such employment agreements with Old Swift, shall be transferred by
Old Swift to New Swift and assumed by New Swift; and conditioned in each case
upon the consent of each of such officer to such transfer and assumption, after
the Effective Time all of the rights and obligations of Old Swift under such
employment agreements shall be assumed by New Swift and New Swift shall be
substituted in the place and stead of Old Swift in such employment agreements.
Section 2.11 Payment of Franchise Taxes. Merger Sub agrees that it will be
responsible for the payment of all fees and franchise taxes owed or to be owed
by Old Swift and hereby obligates itself to pay such fees and taxes if they are
not timely paid by Old Swift.
-8-
ARTICLE III
Conditions
Section 3.1 Conditions. The respective obligation of each party hereto to
effect the merger and the other transactions contemplated hereby is subject to
the satisfaction or waiver of each of the following conditions:
(a) no statute, rule, regulation, executive order, decree, temporary
restraining order, preliminary or permanent injunction or other order shall have
been enacted, entered, promulgated, enforced or issued by any governmental
entity, and no other legal restraint or prohibition shall be in effect, that
prevents the Merger or any of the other transactions contemplated by this Plan,
and no action, claim, proceeding or investigation shall be pending or threatened
by any governmental entity that, if successful, would result in any of the
foregoing effects;
(b) The Boards of Directors of Old Swift and New Swift and the Board of
Managers of Merger Sub shall have adopted resolutions approving this Plan;
(c) The amendment and restatement of the Articles of Incorporation of New
Swift, the amendment and restatement of the Bylaws of New Swift, the amendments
and restatement of the Articles of Organization of Merger Sub, and the amendment
of the Regulations of Merger Sub, all as contemplated by this Plan, shall have
been approved by all necessary action and fully executed, subject only to the
occurrence of the Effective Time;
(d) The Board of Directors of Old Swift shall have received an opinion of
counsel that the holders of Old Swift Common Stock will not recognize gain or
loss for United States federal income tax purposes as a result of the Merger;
and
(e) Prior to the Effective Time, the New York Stock Exchange shall have
authorized, upon official notice of issuance, the listing of the New Swift
Common Stock that will become outstanding pursuant to the Merger, including New
Swift Common Stock that will be held in treasury, the shares of New Swift Common
Stock reserved for issuance upon the exercise of options or in satisfaction of
other benefits payable or outstanding under the Assumed Plans, and the shares of
New Swift preferred stock reserved for issuance in connection with Rights under
the Rights Agreement.
ARTICLE IV
General Provisions
Section 4.1 Interpretation. The headings contained in this Plan are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Plan. The definitions contained in this Plan are
applicable to the singular as well as the plural forms of such terms. The
Exhibits attached hereto are hereby incorporated herein and made a part hereof
for all purposes, as if fully set forth herein.
Section 4.2 Counterparts. This Plan may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other parties.
-9-
Section 4.3 No Third-Party Beneficiaries. This Plan (including the
documents and instruments referred to herein) is not intended to confer upon any
person other than the parties hereto any rights or remedies except as expressly
provided herein.
Section 4.4 Governing Law. This Plan shall be governed by, and construed in
accordance with, the laws of the State of Texas, without regard to the
applicable principles of conflicts of laws of such State.
Section 4.5 Severability. Any term or provision of this Plan which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Plan or affecting the validity or enforceability of any of the terms or
provisions of this Plan in any other jurisdiction. If any provision of this Plan
is so broad as to be unenforceable, the provision shall be interpreted to be
only so broad as is enforceable.
Section 4.6 Entire Agreement. This Plan (including the Exhibits hereto),
together with the agreements referenced therein, contains the entire agreement
and understanding between the parties hereto with respect to the subject matter
hereof and supersedes all prior oral and written, and all contemporaneous oral,
agreements and understandings relating to such subject matter. The parties
hereto shall not be liable or bound to any other party in any manner by any
representations, warranties or covenants relating to such subject matter except
as specifically set forth herein, in the Indentures or in the Second
Supplemental Indentures, in the Rights Agreement or in the Assignment and
Assumption, or in the other instruments referenced in this Plan.
Section 4.7 Assignment. This Plan and the rights and obligations hereunder
shall not be assignable or transferable by any of Old Swift, New Swift or Merger
Sub. Any attempted assignment in violation of this Section 4.7 shall be void ab
initio and of no further force and effect.
Section 4.8 Amendment. At any time prior to the Effective Time, the parties
hereto may, to the extent permitted by the TBCA and the TLLCA, by written
agreement amend, modify or supplement any provision of this Plan.
Section 4.9 Termination. This Plan may be terminated and the Merger
abandoned by the respective Board of Directors or Board of Managers, or the duly
authorized committee thereof, of any party at any time prior to the Effective
Time of this Plan, if such Board of Directors, Board of Managers or committee
determines that for any reason the completion of the Merger would be inadvisable
or not in the best interest of its respective entity or its shareholders or
members. If this Plan is abandoned after filing of this Plan with the Secretary
of State of the State of Texas, then a duly authorized representative of each of
the parties to this Plan shall provide and file with the Texas Secretary of
State the statement required by Article 5.03.L of the TBCA. In the event of
termination of this Plan, this Plan shall become void and none of Old Swift, New
Swift or Merger Sub, nor their respective shareholders, members, directors,
managers or officers shall have any liability with respect to such termination.
-10-
Section 4.10 Copy of Plan on File. A copy of this Plan is on file at the
place of business of Merger Sub, the Surviving Entity of the Merger, at the
following address:
Swift Energy Operating, LLC
16825 Northchase Drive
Suite 400
Houston, Texas 77060-6098
Section 4.11 Copy of Plan to be Furnished. A copy of this Plan will be
furnished by Merger Sub, on written request and without cost, to any member of
Merger Sub or any shareholder of Old Swift or New Swift.
IN WITNESS WHEREOF, Old Swift, New Swift and Merger Sub have caused this
Plan to be executed by their respective officers, thereunto duly authorized, all
as of the date first written above.
SWIFT ENERGY COMPANY
By: /s/ Terry E. Swift
----------------------------------------
Terry E. Swift
Chief Executive Officer
NEW SWIFT ENERGY COMPANY
By: /s/ Bruce H. Vincent
----------------------------------------
Bruce H. Vincent
President
SWIFT ENERGY OPERATING, LLC
By: /s/ Alton D. Heckaman, Jr.
----------------------------------------
Alton D. Heckaman, Jr.
Executive Vice President
-11-