Exhibit 4.1
ASSET PURCHASE AGREEMENT
- --------------------------------------------------------------------------------
between
SWIFT ENERGY COMPANY
and
SWIFT ENERGY NEW ZEALAND LIMITED
and
BLIGH OIL & MINERALS N.L.
and
MARABELLA ENTERPRISES LIMITED
and
BLIGH OIL & MINERALS (NZ) LIMITED
TABLE OF CONTENTS
Page
Article I Purchase and Sale..............................................2
Section 1.1 Sale and Purchase of Interests......................2
Section 1.2 Closing Date........................................5
Section 1.3 Effective Date......................................5
Section 1.4 Purchase Price......................................5
Section 1.5 No Assumption of Liabilities........................6
Section 1.6 Valuation and Accounting............................6
Section 1.7 Rimu Production Station.............................6
Section 1.8 Taxation............................................6
Article II Buyer's and Swift's Representations and Warranties............8
Section 2.1 Organization and Good Standing......................8
Section 2.2 Authorization and Validity..........................8
Section 2.3 No Conflicts or Violation...........................8
Section 2.4 Finder's Fee........................................8
Section 2.5 The Shares..........................................9
Section 2.6 SEC Filings; Disclosure.............................9
Section 2.7 Accuracy of Information Furnished and
Representations.....................................9
Section 2.8 GST Registration....................................9
Article III Representations and Warranties of BLIGH.....................10
Section 3.1 Organization and Good Standing.....................10
Section 3.2 Capitalization.....................................10
Section 3.3 Corporate Records, No Conflicts or Violation.......10
Section 3.4 Authorization and Validity.........................11
Section 3.5 Liabilities and Obligations........................11
Section 3.6 Employees and Employee Benefit Plans...............11
Section 3.7 Absence of Certain Changes.........................11
Section 3.8 Title; Leased Assets...............................12
Section 3.9 Insurance..........................................12
Section 3.10 Status of Contracts................................12
Section 3.11 Taxes..............................................12
Section 3.12 Consents...........................................13
Section 3.13 Compliance with Laws; Regulatory Compliance........13
Section 3.14 Finder's Fees......................................13
Section 3.15 Litigation and Claims..............................13
Section 3.16 Accuracy of Information Furnished and
Representations....................................13
Section 3.17 Condition of Certain of the Interests..............14
Section 3.18 Data and Records...................................14
Section 3.19 Environmental Compliance...........................15
Section 3.20 Questionable Payments..............................16
Section 3.21 Limitations of Representations and Warranties......16
Section 3.22 Representations and Warranties Concerning
Securities.........................................16
i
Article IV Buyer's and Swift's Covenants................................19
Section 4.1 Consummation of Agreement..........................19
Section 4.2 Registration on Form S-3...........................19
Section 4.3 Registration Procedures............................19
Article V BLIGH's Covenants.............................................23
Section 5.1 Business Operations and Consummation of Agreement..23
Section 5.2 Access and Future Cooperation......................23
Section 5.3 Material Change....................................23
Section 5.4 Consents, Approvals and Notifications of Third
Parties............................................23
Section 5.5 No Negotiation with Others.........................24
Section 5.6 Information for Tax Returns........................24
Section 5.7 Expenses of Registration, Restriction on Resale
of the Shares......................................24
Section 5.8 Hedging Transactions...............................25
Article VI Buyer's and Swift's Conditions Precedent.....................26
Section 6.1 Representations and Warranties.....................26
Section 6.2 Covenants..........................................26
Section 6.3 Proceedings........................................26
Section 6.4 No Material Adverse Change.........................26
Section 6.5 Consents...........................................26
Section 6.6 Due Diligence......................................26
Section 6.7 Documents to be Delivered by Bligh.................27
Section 6.8 Additional Instruments of Transfer.................28
Article VII bligh's Conditions Precedent................................29
Section 7.1 Representations and Warranties.....................29
Section 7.2 Covenants..........................................29
Section 7.3 Documents to be Delivered at Closing...............29
Section 7.4 Proceedings........................................30
Section 7.5 Consents...........................................30
Section 7.6 No Material Adverse Change.........................30
Article VIII Indemnification............................................31
Section 8.1 Bligh's Indemnity..................................31
Section 8.2 Buyer's and Swift's Indemnity......................31
Section 8.3 Reclamation Obligations............................32
Section 8.4 Securities Indemnification.........................32
Section 8.5 Conditions of Indemnification......................33
Section 8.6 Contribution.......................................33
Section 8.7 Remedies Not Exclusive.............................34
Section 8.8 Limitation on Liability............................34
Article IX Termination..................................................35
Section 9.1 Termination by Buyer or Swift......................35
Section 9.2 Termination by Bligh...............................35
ii
Article X Miscellaneous.................................................36
Section 10.1 Amendment..........................................36
Section 10.2 Assignment.........................................36
Section 10.3 Notice.............................................36
Section 10.4 Confidentiality....................................36
Section 10.5 Entire Agreement...................................38
Section 10.6 Costs, Expenses and Legal Fees.....................38
Section 10.7 Severability.......................................38
Section 10.8 Survival of Representations, Warranties and
Covenants..........................................38
Section 10.9 Governing Law......................................38
Section 10.10 Captions...........................................38
Section 10.11 Counterparts; Facsimile Execution..................38
iii
EXHIBITS
Exhibit 1.3.................................................Adjustment Statement
Exhibit 1.8.........................................Letter Dated 24 January 2002
Exhibit 3.2.......................................................Capitalisation
Exhibit 3.5......................................... Liabilities and Obligations
Exhibit 3.7...........................................Absence of Certain Changes
Exhibit 3.8.................................................Title; Leased Assets
Exhibit 3.9............................................................Insurance
Exhibit 3.12............................................................Consents
Exhibit 3.15...............................................Litigation and Claims
Exhibit 3.19............................................Environmental Compliance
Exhibit 6.7..........................................Opinion of Seller's Counsel
Exhibit 7.3...........................................Opinion of Buyer's Counsel
iv
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement, dated as of August ____, 2002 is made by and
among SWIFT ENERGY COMPANY, a Texas corporation ("Swift"), SWIFT ENERGY NEW
ZEALAND LIMITED, a New Zealand corporation and an indirect wholly-owned
subsidiary of Swift ("Buyer"), and BLIGH OIL & MINERALS N.L, an Australian
corporation organized under the Corporations Act 2001 ("Bligh Australia"),
MARABELLA ENTERPRISES LIMITED a New Zealand corporation and a wholly-owned
subsidiary of Bligh Australia ("Marabella") and BLIGH OIL & MINERALS (NZ)
LIMITED, a New Zealand corporation and a wholly-owned subsidiary of Bligh
Australia ("Bligh NZ") (Marabella and Bligh NZ are collectively referred to
herein as "Seller" and Bligh Australia, Marabella and Bligh NZ are collectively
referred to herein as "Bligh").
W I T N E S S E T H:
WHEREAS, Seller owns and desires to sell, and Buyer desires to purchase, on
the terms and subject to the conditions and limitations set forth herein,
Seller's 5.0% participating interest in Petroleum Exploration Permit PEP 38719
("PEP 38719"), Seller's 5.0% participating interest in Petroleum Mining Permit
38151 ("PMP 38151"), Seller's 3.24% participating interest in Petroleum Mining
License 38138 ("PML 38138"), Seller's 3.24% participating interest in Petroleum
Mining License 38139 ("PML 38139"), Seller's 3.24% participating interest in
Petroleum Mining License 38140 ("PML 38140"), Seller's 3.24% participating
interest in Petroleum Mining License 38141 ("PML 38141"), and certain rights and
interests related thereto;
WHEREAS, Seller owns a 5.0% participating interest in the joint venture
owning the assets (other than the Rimu production station) located on PEP 38719
and on PMP 38151 under the Joint Venture Operating Agreement governing the joint
venture operating PEP 38719 and PMP 38151 and a 3.24% participating interest in
the joint venture assets located on PML 38138, PML 38139, PML 38140 and on PML
38141 under the Joint Venture Operating Agreement governing the joint venture
operating PML 38138, PML 38139, PML 38140 and PML 38141;
WHEREAS, Seller desires to sell Seller's interests in PEP 38719, PMP 38151,
PML 38138, PML 38139, PML 38140 and PML 38141, and the joint ventures owning the
assets thereon, under the Joint Venture Operating Agreements governing these
joint ventures; and
WHEREAS, Seller agrees to sell its interest in all of the foregoing
described assets and Buyer agrees to purchase Seller's interest in such assets
upon the following terms and conditions so as to enable Buyer to legally and
beneficially acquire the interests of Seller in PEP 38719, PMP 38151, PML 38138,
PML 38139, PML 38140, PML 38141 and the joint ventures owning the assets
thereon, under the Joint Venture Operating Agreements governing these joint
ventures;
NOW, THEREFORE, in consideration of the mutual representations, warranties
and covenants contained herein and the consideration provided herein, and on the
terms and subject to the conditions herein set forth, the parties hereto agree
as follows:
1
Article I
Purchase and Sale
Section 1.1 Sale and Purchase of Interests. Subject to and upon the terms
and conditions contained herein, at the Closing (hereinafter defined), Seller
shall, free and clear of all liens, claims and encumbrances, sell, transfer,
assign, convey and deliver to Buyer, and Buyer shall purchase, accept and
acquire from Seller, free and clear of all liens, claims and encumbrances, the
Interests (hereafter defined).
(a) Interests means:
(A) Seller's 5.0% participating interest in PEP 38719, issued by
the Minister on 12 August 1996, and Seller's 5.0%
participating interest in PMP 38151, issued by the Minister
on 30 January 2002 together with Seller's rights under that
certain Farmout Agreement and that certain Deed of
Assignment and Assumption, both made effective as of April
1, 1998;
(B) Seller's 3.24% participating interest in PML 38138, issued
by the Minister on 17 November 1987, and Seller's 3.24%
participating interest in PML 38139, issued by the Minister
on 17 November 1987, and Seller's 3.24% participating
interest in PML 38140, issued by the Minister on 17 November
1987, and Seller's 3.24% participating interest in PML
38141, issued by the Minister on 4 May 1988, together with
Seller's rights under any additional licences, permits,
servitudes, rights of way, farmin agreements, farmout
agreements and options or interests related to Seller's
3.24% participating interest in any or all of PML 38,138,
PML 38139, PML 38140 and PML 38141;
(C) Seller's interests in or arising under that certain Joint
Operating Agreement entered into originally between Buyer
and Marabella Enterprises Limited with respect to PEP 38719,
with a stated effective date of 1 April 1998 (the "RIMU
Operating Agreement"), and Seller's interests in or arising
under the certain Joint Venture Operating Agreement entered
into originally between Bligh Oil & Minerals N.L., Petrocorp
Exploration (Taranaki) Limited, and others, with respect to
the Crown Petroleum Prospecting License 38034, dated 14
April 1986 (the "TAWN Operating Agreement" and collectively
with the RIMU Operating Agreement the "Joint Venture
Operating Agreements");
2
(D) Seller's interests in, or rights in or arising under, any
Joint Assets (hereafter defined), including, but not limited
to the following:
(1) Seller's 3.24% interest in the "Gas Export Pipeline"
which means the gas export pipeline which is currently
owned by the TAWN Joint Venturers and runs between the
Waihapa Production Facilities and the New Plymouth
Power Station;
(2) Seller's 3.24% interest in the "Ngatoro Spur Line"
which means the Petroleum liquids pipeline currently
owned by the TAWN Joint Venturers used for the
transportation of Petroleum liquids from Petroleum
Mining License 38091, issued by the Minister on 4 April
1984 (the "Kaimiro License") and from Petroleum Mining
Permit 38148, issued by the Minister on 23 December
1996 (the "Ngatoro Permit") to the Oil Export Pipeline
described in (3) below;
(3) Seller's 3.24% interest in the "Oil Export Pipeline"
which means the oil export pipeline which is currently
owned by the TAWN Joint Venturers and which runs
between the Waihapa Production Facilities and the Omata
Tank Farm, a crude oil and condensate storage facility
situated at Omata, New Plymouth;
(4) Seller's 3.24% interest in the "Waihapa Production
Facilities" which means the facilities which are
currently owned by the TAWN Joint Venturers, including
but not limited to the Tariki/Ahuroa gas plant, and
used for Petroleum production, processing, gathering,
treatment, storage and transportation operations.
(b) As used in this Agreement:
(i) The term "JointOperations" shall mean all operations for
the exploration for Petroleum (as said term is defined in
the Operating Agreements), and the production, processing,
transportation and sale of Petroleum, and all things
necessary and incidental thereto, conducted pursuant to
the Joint Venture Operating Agreements.
(ii) The term "Contracts" shall mean all gas purchase and sale
agreements, gas contracts, crude oil purchase and sale
agreements, Petroleum liquids sales agreements, processing
agreements, leases of equipment or facilities and any and
all other contractual agreements. As used in this
Agreement, the term "Joint Contracts" shall mean all
Contracts related in any way to the Joint Operations.
3
(iii) The term "Property" shall mean real, personal and mixed
property used in connection with the exploration for
Petroleum and the production, processing, transportation
and sale thereof including, but not limited to (i) wells,
all wellhead equipment, fixtures, field separators and
liquid extractors, pipe, casing, and tubing, (ii) all
production, gathering line and pipeline equipment and
facilities, and (iii) all tanks, machines, equipment,
tools, dies, vessels and other facilities and inventory.
As used in this Agreement, the term "Joint Property"
shall mean all Property related in any way to the Joint
Operations.
(iv) The term "Lands" shall mean all real property rights and
titles. As used in this Agreement, the term "Joint Lands"
shall mean all Lands related in any way to the Joint
Operations.
(v) The term "Data" shall mean geological data and reports,
subject to all applicable licensing and other agreements,
and all restrictions on transfer, all well logs, core
reports and any core samples, seismic data, interpreted
maps, contour maps, isopach maps and other such records
and documents. As used in this Agreement, the term
"Joint Data" shall mean all Data related in any way to
the Joint Operations.
(vi) The term "Records" shall mean corporate files, records,
financial statements and tax returns, documents,
correspondence and data. As used in this Agreement, the
term "Joint Records" shall mean all Records related in any
way to the Joint Operations.
(vii) The term "Joint Assets" shall mean all interests incident
to the Joint Operations, including any rights to use, own,
operate or maintain the Joint Contracts, Joint Property,
Joint Lands, Joint Data and Joint Records.
(viii) The term "Minister" means the Minister of Energy or any
other Minister for the time being exercising the powers
conferred on the Minister of Energy by the Petroleum Act
1937 or the Crown Minerals Act 1991.
(ix) The term "TAWN Joint Venturers" means the parties from
time to time to the TAWN Operating Agreement.
(x) All references to "$" are references to United States
dollars unless otherwise specified.
4
Section 1.2 Closing Date. The closing of the transactions contemplated
hereby (the "Closing") shall occur as soon as reasonably practicable following
satisfaction of all conditions precedent to the parties' obligations to Closing
(the "Closing Date"), but not later than two months after the date of execution
of this Agreement or such later date as the parties may agree at 10:00 a.m. New
Zealand Time, in the offices of Swift Energy New Zealand Limited, 113-119 The
Terrace, Level 19, PWC Tower, Wellington, New Zealand.
Section 1.3 Effective Date. If the transactions contemplated by this
Agreement are consummated in accordance with this Agreement, the date on which
the economic benefits and burdens relating to the Interests of Seller shall
shift from Seller to Buyer shall be 1 April 2002 ("the Effective Date").
Notwithstanding anything in this Section 1.3 to the contrary, the shift of
economic benefits and burdens as of the Effective Date shall not relieve Bligh
from any liability or obligation to Buyer or Swift arising out of any breach of
Bligh's representations, warranties or covenants under this Agreement, and shall
not relieve Buyer or Swift from any liability or obligation to Bligh arising out
of any breach of Buyer's or Swift's representations, warranties or covenants
under this Agreement.
As a result of such shift, and recognizing that Buyer is the operator with
respect to the Interests, and subject to any apportionments required in respect
of revenues earned and expenditures incurred in respect of the period up to and
including the Effective Date, no further amounts will be payable from Seller to
Buyer for capital expenditures or operating expenditures, and no further revenue
amounts will be payable to Seller from Buyer, whether related to or arising out
of operations prior to, on, or after the Effective Date. The parties acknowledge
that to the extent of any imbalance in such amounts as of the Effective Date,
such imbalance has been taken into account in determining the Purchase Price
(hereinafter defined) and is set out in the statement attached as Exhibit 1.3.
Section 1.4 Purchase Price. The total Purchase Price for the Interests (the
"Purchase Price") shall be satisfied by; (a) payment to Bligh Australia of the
of the sum of $2,750,000 less the amount of the adjustment required in terms of
section 1.3 above; and (b) by the transfer to Bligh Australia of Three Hundred
Thousand (300,000) fully paid and non-assessable shares of Swift common stock,
$0.01 par value (the "Shares"), each Share valued at the closing price of
Swift's common stock on the New York Stock Exchange on the Closing Date, as
published in the Wall Street Journal for New York Stock Exchange Composite
Transactions. The parties each acknowledge and confirm that the number of shares
of Swift's common stock included in the Purchase Price is not subject to
adjustment, and that such number was set taking account of, among other factors,
the shift of economic benefits and burdens provided for in Section 1.3 above. At
the Closing, Buyer shall; (a) pay to Bligh Australia the sum of $2,750,000 (less
the amount of the adjustment made pursuant to section 1.3) in immediately
cleared funds; and (b) cause Swift to deliver to Bligh Australia the Shares in
satisfaction of Buyer's obligation to pay the Purchase Price to Seller. By its
acceptance of the sum of $2,750,000 (less the amount of the adjustment made
pursuant to section 1.3) and delivery of the Shares, Bligh will acknowledge that
payment of $2,750,000 (less the amount of the adjustment made pursuant to
section 1.3) and delivery of the Shares to it represents full and final
satisfaction of Buyer's obligation to pay the Purchase Price for the Interests.
The parties agree that the Purchase Price does not include any capitalized
interest, and that the "lowest price" for the purposes of section EH48(3)(a) of
the New Zealand Income Tax Act 1994 is equal to the Purchase Price.
5
Section 1.5 No Assumption of Liabilities. Except for the obligations of
Bligh related to the Interests which first arise or are first to be performed
after the Closing Date, and which do not relate to any breach of Bligh's
representations, warranties or covenants under this Agreement, and except for
such economic burdens described in Section 1.3 herein and which do not relate to
any breach of Bligh's representations, warranties or covenants under this
Agreement, (such obligations, together with such economic burdens described in
Section 1.3, are collectively referred to herein as "Assumed Obligations"),
neither Buyer nor Swift shall assume, purchase or agree to pay, perform or
discharge any liabilities or obligations of Bligh, whether accrued, absolute,
contingent or otherwise, including without limitation, liabilities based on,
arising out of, or in connection with the Interests.
Section 1.6 Valuation and Accounting. The transactions contemplated by this
Agreement shall be valued at the closing price of Swift's common stock on the
New York Stock Exchange on the Closing Date, as published in the Wall Street
Journal for New York Stock Exchange Composite Transactions. The transactions
contemplated by this Agreement shall be accounted for as a purchase under United
States generally accepted accounting principles.
Section 1.7 Rimu Production Station. Seller does not have, and has not ever
had, any rights, title or any interests in the Rimu production station designed
to produce specification gas, specification propane and butane and stabilized
crude oil, which has been commissioned by Swift, and furthermore Seller owes no
amounts to Buyer within the areas prescribed by PEP 38719 or PMP 38151 related
to Buyer's construction of the Rimu production station or installation of
flowlines, gathering or separation equipment pertaining to either PEP 38719 or
PMP 38151.
Section 1.8 Waihapa Production Station and associated assets. Buyer and
Swift agree that, by a letter from Buyer to Bligh dated 24 January 2002 (a copy
of which is attached as Exhibit 1.8), Buyer described the intention of the
parties to put in place access arrangements, including access to processing
facilities at the Waihapa production station owned and operated by an affiliate
of the Buyer for transportation of hydrocarbons owned or produced by Seller or
its affiliates and transportation of those hydrocarbons from the Waihapa
production station to the oil storage facility at Omata, adjacent to the port of
New Plymouth, by means of the oil export pipeline owned and operated by an
affiliate of the Buyer. In particular, the present intentions of the Buyer
relating to access to the Waihapa production station and associated assets are
stated in the letter of 24 January 2002, however the parties specifically
reserve their positions in regard to the finalisation of any such access
arrangements. For the avoidance of doubt, the parties and acknowledge and agree
that the rights granted pursuant to any such access arrangements will be
personal to the Seller and those of its affiliates named therein and shall not
be transferable or assignable.
Section 1.9 Taxation. The parties to this Agreement acknowledge that New
Zealand goods and services tax ("GST") imposed under the New Zealand Goods and
Services Tax Act 1985 is not chargeable on the sale by Seller of the Interests,
and Buyer and Swift will not claim GST input tax credit in respect of the sale
unless Seller is subsequently determined to be liable for GST in relation to the
sale. If Seller is subsequently determined to be liable for GST in relation to
the sale by Seller of the Interests, then Seller will, if requested to do so by
Buyer, become a registered person for GST purposes and issue Buyer with a GST
tax invoice for the amount of the Purchase Price (together with GST thereon).
Upon receipt of such GST tax invoice, Buyer will promptly pay such GST to Seller
for payment to the New Zealand Inland Revenue Department and Buyer will (or will
procure that any body or group that Buyer is or was at the relevant time a
member will), at the first opportunity to do so, claim a GST input credit from
the New Zealand Inland Revenue Department in respect of that sale.
6
ARTICLE II
Buyer's and Swift's Representations and Warranties
Buyer and Swift acknowledge and agree that (i) because Swift is the
indirect parent corporation of Buyer, Swift has a financial interest in and will
benefit from the transactions contemplated by this Agreement, (ii) Swift has
entered into this Agreement as an inducement for Bligh to enter into this
Agreement and consummate the transactions contemplate hereby, and (iii) but for
Swift's willingness to enter into this Agreement and consummate the transactions
contemplate hereby, Bligh would not have been willing to enter into this
Agreement and consummate the transactions contemplated hereby. Accordingly,
Buyer and Swift, jointly and severally, represent and warrant that the following
are true and correct as of this date and will be true and correct through and on
the Closing Date as if made on and as of such dates:
Section 2.1 Organization and Good Standing. Buyer and Swift are
corporations duly organized, validly existing and in good standing under the
laws of the jurisdictions of their incorporation, with all requisite power and
authority to carry on the businesses in which they are engaged, to own the
properties they own and to execute and deliver this Agreement and the other
agreements contemplated hereby and to consummate the transactions contemplated
hereby and thereby. Buyer and Swift are duly qualified, validly existing and in
good standing in all jurisdictions where the nature of their business makes such
qualification necessary.
Section 2.2 Authorization and Validity. The execution, delivery and
performance of this Agreement and the other agreements contemplated hereby, and
the consummation of the transactions contemplated hereby and thereby, have been
duly authorized by Buyer and Swift and no corporate proceedings other than those
that will be taken prior to Closing are necessary in connection with such
authorization. This Agreement has been, and each other agreement contemplated
hereby will be, prior to Closing, duly executed and delivered by Buyer and
Swift, and, assuming the due authorization, execution and delivery by Bligh,
this Agreement constitutes, and each agreement contemplated hereby will
constitute, legal, valid and binding obligations of Buyer and Swift, enforceable
against Buyer and Swift in accordance with their respective terms.
Section 2.3 No Conflicts or Violation. Neither the execution and
performance of this Agreement or the other agreements contemplated hereby, nor
the consummation of the transactions contemplated hereby or thereby, will (a)
conflict with, or result in a breach of the terms, conditions and provisions of,
or constitute a default under, the Articles of Incorporation or Bylaws of Swift,
or other governing documents of Buyer, or any agreement, indenture or other
instrument under which Buyer or Swift is bound, or (b) violate or conflict with
any judgment, decree, order, statute, rule or regulation of any court or any
public, governmental or regulatory agency or body having jurisdiction over Buyer
or Swift or the properties or assets of Buyer or Swift.
Section 2.4 Finder's Fee. Neither Buyer nor Swift have incurred any
obligation for any finder's, broker's or agent's fee in connection with the
transactions contemplated hereby in a manner that will result in liability on
the part of Bligh.
Section 2.5 The Shares. The Shares to be issued to Bligh Australia
pursuant to this Agreement, when issued in accordance with the terms of this
Agreement, will be duly authorized, validly issued, fully paid and
non-assessable. The issuance of the Shares pursuant to this Agreement will
transfer to Bligh Australia valid title to the Shares, free and clear of all
liens, encumbrances and claims of every kind except for any created by Bligh.
The Shares are, or upon Closing will be, listed for trading on the New York
Stock Exchange. The Shares will be "restricted securities" under the U.S.
securities laws and regulations until the Registration Statement (defined
hereinafter in Section 4.2) for the resale of the Shares has been filed and
declared effective by the U.S. Securities and Exchange Commission (the "SEC").
7
Section 2.6 SEC Filings; Disclosure. Swift has filed with the SEC all
forms, statements, reports and documents required to be filed by it for the
fiscal years 1999, 2000 and 2001, and for the quarterly periods ended March 31
and June 30 2002, under each of the Securities Act of 1933, as amended (the
"1933 Act"), the Securities Exchange Act of 1934, as amended (the "1934 Act"),
and the respective rules and regulations thereunder, all of which, as amended,
if applicable, complied when filed in all material respects with the applicable
requirements of the appropriate Act and the rules and regulations thereunder. As
of the filing date of each, Swift's Disclosure Documents (as hereinafter defined
in Section 3.22(h), but not including Swift's press releases, which are not
included in the definition of Swift's Disclosure Documents for purposes of this
Section 2.6. did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
Section 2.7 Accuracy of Information Furnished and Representations. All
information furnished to Bligh by Buyer or Swift herein or in any exhibit hereto
is, and as supplemented after the date of this Agreement by any and all filings
with the SEC and any and all publicly disclosed information, including but not
limited to any and all press releases, as of the Closing Date will be, true,
correct and complete in all material respects, and such information states all
material facts required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which such statements were made,
true, correct and complete in all material respects. No representation or
warranty by Buyer or Swift in this Agreement or any agreement or document
delivered by Buyer or Swift pursuant to this Agreement contains or will contain,
as of the Closing Date, an untrue statement of a material fact or omits or will
omit to state a material fact necessary to make the statements contained in any
such representation or warranty, in light of the circumstances under which they
were made, not misleading.
Section 2.8 GST Registration Buyer represents and warrants that the joint
ventures constituted by the Joint Operating Agreements are registered person for
the purposes of the New Zealand Goods and Services Tax Act 1985 at the time of
entering into this Agreement.
8
ARTICLE III
Representations and Warranties of Bligh
Bligh agrees that (i) because Bligh Australia is the parent corporation of
Seller, Bligh Australia has a financial interest in and will benefit from the
transactions contemplated by this Agreement, (ii) Bligh Australia has entered
into this Agreement as an inducement for Buyer and Swift to enter into this
Agreement and consummate the transactions contemplated hereby, and (iii) Bligh
Australia's willingness to enter into this Agreement and consummate the
transactions contemplate hereby, Buyer and Swift would not have been willing to
enter into this Agreement and consummate the transactions contemplated hereby.
Accordingly, Bligh Australia and Seller, jointly and severally, represent and
warrant that the following are true and correct as of this date and will be true
and correct through and on the Closing Date as if made on and as of such dates:
Section 3.1 Organization and Good Standing. Bligh Australia and Seller are
each corporations duly organized, validly existing and in good standing under
the laws of the jurisdictions of their organization, with all requisite power
and authority to own the Interests. Seller is duly qualified, validly existing
and is in good standing in all jurisdictions where the nature of the ownership
of the Interests makes such qualification necessary. Neither Bligh Australia nor
Seller owns, directly or indirectly, any of the capital stock of any other
corporation, other than Bligh Australia's ownership of the capital stock of
Seller, or any equity, profit sharing, participation, or other interest in any
corporation, partnership, joint venture or other entity which owns the
Interests, conducts any portion of the Joint Operations or owns any portion of
the Joint Assets.
Section 3.2 Capitalization. Bligh Australia owns all of the issued and
outstanding capital stock of Seller, free and clear of all liens, claims,
encumbrances, equities and proxies. . Except as specified in Exhibit 3.2, each
outstanding share of capital stock of Bligh and Seller has been legally and
validly issued and is fully paid and nonassessable. Except as specified in
Exhibit 3.2, there exist no options, warrants, subscriptions or other rights to
purchase, or securities convertible into or exchangeable for, any of the
authorized or outstanding securities of Bligh Australia or Seller, and there are
no other such rights limiting Bligh Australia's ability to act on behalf of
Seller as its ultimate parent entity.
Section 3.3 Corporate Records, No Conflicts or Violation. The Certificate
and Articles of Incorporation and the Bylaws duly certified as of a recent date
by a duly appointed and authorized officer, with respect to Bligh, and the other
governing documents duly certified as a recent date by duly appointed and
authorized officers, with respect to Bligh Australia and Seller, that have been
delivered to Buyer are true, correct and complete copies thereof. Neither the
execution and performance of this Agreement or the other agreements contemplated
hereby, nor the consummation of the transactions contemplated hereby or thereby,
will (a) conflict with, or result in a breach of the terms, conditions and
provisions of, or constitute a default under the Certificate and Articles of
Incorporation or Bylaws of Bligh, or other governing documents of Bligh
Australia or Seller, or any agreement, indenture or other instrument under which
Bligh is bound, or (b) violate or conflict with any judgment, decree, order,
statute, rule or regulation of any court or any public, governmental or
regulatory agency or body having jurisdiction over Bligh's properties or assets.
9
Section 3.4 Authorization and Validity. The execution, delivery and
performance of this Agreement and the other agreements contemplated hereby, and
the consummation of the transactions contemplated hereby and thereby, have been
duly authorized by Bligh and no corporate proceedings other than those that will
be taken prior to Closing are necessary in connection with such authorization.
This Agreement has been, and each other agreement contemplated hereby will be,
at or prior to Closing, duly executed and delivered by Bligh, and, assuming the
due authorization, execution and delivery by Buyer and Swift, this Agreement
constitutes, and each other agreement contemplated hereby will constitute,
legal, valid and binding obligations of Bligh, enforceable against Bligh.
Section 3.5 Liabilities and Obligations. To the best of Bligh's knowledge
and information, except as set forth in Exhibit 3.5 hereto, and except for the
Assumed Obligations, there are no liabilities of any kind, character or
description, whether accrued, absolute, secured or unsecured, contingent or
otherwise which in any way relate to, or could result in a claim against or lien
upon, the Interests and which arise out of transactions effected or events
occurring on or prior to the date hereof. Except as set forth in Exhibit 3.5,
and except for the Assumed Obligations, Bligh is not liable upon or with respect
to, or obligated in any other way to provide funds in respect of or to guarantee
or assume in any manner, any debt, obligation or dividend of any person,
corporation, association, partnership, joint venture, trust or other entity, and
there are no unpaid bills or past due charges for any labor or materials
incurred by or on behalf of Bligh which in any way relate to, or could result in
a claim against or lien upon, the Interests, and which arise out of transactions
effected or events occurring on or prior to the date hereof.
Section 3.6 Employees and Employee Benefit Plans. To the best of its
knowledge and information, Bligh has no obligation or liability, direct or
indirect, express or implied, including superannuation, redundancy entitlements
or any other obligation, arising under an employment agreement or arrangement,
and has no obligation to any third parties, including governmental agencies,
regarding employment of any person, which could become an obligation or
liability of Buyer or Swift as a result of executing, delivering or performing
this Agreement or consummating the transactions contemplated hereby. Bligh does
not maintain any employee benefit plan or program under which an employee is
receiving, or has a right to receive, any employee benefit which could become an
obligation or liability of Buyer or Swift as a result of executing, delivering
or performing this Agreement or consummating the transactions contemplated
hereby.
Section 3.7 Absence of Certain Changes. Except as set forth in Exhibit 3.7
hereto, Bligh owns the Interests in the ordinary course of business, and there
has not been and will not be prior to, or on, the Closing Date:
(a) Any material damage, destruction or loss to or of the
Interests, to the best of Bligh's knowledge, whether or not
covered by insurance;
(b) Any sale, lease or other disposition of the Interests except
as permitted by the terms of this Agreement;
(c) Any mortgage, pledge or grant of a lien or security interest
in any of the Interests except any such encumbrance that
will be released at or before the Closing; or
(d) Any contract or commitment to do any of the foregoing with
respect to the Interests.
10
Section 3.8 Title; Leased Assets. Section 1.1 and Exhibit 3.8 sets forth an
accurate list and description of all property, rights, titles and interests that
constitute the Interests. Bligh warrants title to the Interests, except for
"Agreed Permitted Encumbrances" as set out in Exhibit 3.8, free and clear of all
liens, claims and encumbrances. Upon consummation of the transactions
contemplated hereby, Buyer shall receive, and will be entitled to use, the
Interests free and clear of all liens, claims and encumbrances, other than
Agreed Permitted Encumbrances.
Section 3.9 Insurance. All the insurable risks relating to the Interests
and, to the best of Bligh's knowledge, the Joint Operations and the Joint Assets
are insured under valid and enforceable policies, issued by insurers of
recognized responsibility in amounts, and against such risks and losses, as is
customary in Seller's industry. Attached as Exhibit 3.9 are true, complete and
correct copies of all such policies, maintained by, or maintained for the
benefit of, Seller with respect to the Interests, and a list of all rights
incident to such policies.
Section 3.10 Status of Contracts. To the best of Bligh's knowledge and
information, all of the Contracts included in the Interests and, to the best of
Bligh's knowledge, the Joint Contracts (a) are in full force and effect, (b)
neither Seller nor, to the knowledge of Bligh, any third party to the Contracts
included in the Interests or the Joint Contracts (i) is in breach of or default,
or with the lapse of time or the giving of notice, or both, would be in breach
or default, with respect to any of its obligations thereunder to the extent that
such breaches or defaults could have a material adverse impact on the Interests,
or, to the best of Bligh's knowledge, the Joint Operations or the Joint Assets
or (ii) has given or threatened to give notice of any default under or inquiry
into any possible default under, or action to alter, terminate, rescind or
procure a judicial reformation of any Contract included in the Interests or
Joint Contracts, and (c) Bligh has no reason to believe that any other party to
a Contract included in the Interests or to the best of Bligh's knowledge a Joint
Contract will be in breach of or default under or repudiate any of its
obligations thereunder to the extent that such breach or default will have a
material adverse impact on the Interests, the Joint Operations or the Joint
Assets.
Section 3.11 Taxes. There is no deficiency or delinquency for the payment
of any tax, assessment or governmental charge asserted against Bligh nor is
there any material violation by Bligh of any taxing authority with jurisdiction
over the Interests or, to the best of Bligh's knowledge, the Joint Operations or
the Joint Assets, or which could affect, create a lien on, or otherwise encumber
the Interests or, to the best of Bligh's knowledge, the Joint Operations or
Joint Assets, or which could be asserted against Buyer or Swift as a result of
executing, delivering or performing this Agreement or consummating the
transactions contemplated hereby. Bligh has not received notification pertaining
to any, and to the best of Bligh's knowledge there is no, audit of Bligh by the
New Zealand Inland Revenue Department, the Australian Tax Office, nor any other
governmental taxing authority is pending or, to the knowledge of Bligh,
threatened, and the results of any completed audits are properly reflected in
the Financial Statements of Bligh. Bligh has not granted any extension to any
taxing authority of the limitation period during which any tax liability may be
asserted against, or result in a lien or other encumbrance on, the Interests, or
against Buyer or Swift as a result of executing, delivering or performing this
Agreement or consummating the transactions contemplated hereby. Subject to the
agreements of the parties set forth in Section 1.8 above, Bligh shall pay any
and all such taxes and assessments for the period prior to the Closing Date when
such taxes become due and payable.
11
Section 3.12 Consents. Set forth on Exhibit 3.12 is a list of (i) all
approvals, consents, filings and notifications required to be obtained, made or
given for the assignment or transfer of the Interests to Buyer and (ii) each
waiver of each preferential purchase right that affects the Interests which must
be obtained in connection with the assignment or transfer of the Interests to
Buyer. As of the date of this Agreement, Bligh has not obtained any of the
approvals, consents or waivers, and has not made any of the filings or
notifications, set forth on Exhibit 3.12.
Section 3.13 Compliance with Laws; Regulatory Compliance.
(a) The ownership of the Interests and, to the best of Bligh's
knowledge, the ownership of the Joint Assets, and the
conduct of the Joint Operations have been and currently are
in compliance with the provisions and requirements of any
applicable law, licensing requirement or regulation. Bligh
has filed with the proper authorities all necessary
statements and reports required to be filed by it with
respect to, and has at all times maintained all necessary
licenses, permits, governmental authority or any other such
authority to own, the Interests, and no existing violations
exist in respect to such. There are no existing violations
by Bligh of any applicable law or regulation that could
materially adversely affect the Interests, nor, to the best
of Bligh's knowledge, the Joint Operations or the Joint
Assets.
(b) Bligh is not aware of any facts, conditions or circumstances
that could reasonably be expected to give rise to any claim
or assertion that the Interests, the Joint Operations or the
Joint Assets are not in compliance with an applicable law or
regulation or with any term or condition of any applicable
license, permit, governmental authority, or any other such
authority.
Section 3.14 Finder's Fees. Bligh has not incurred any obligation for any
finder's, broker's or agent's fee in connection with the transactions
contemplated hereby in a manner that will result in liability on the part of
Buyer or Swift.
Section 3.15 Litigation and Claims. Except as described in Exhibit 3.15,
there is no legal action or administrative proceeding or investigation
instituted or to Bligh's knowledge threatened against Bligh or affecting, or
that could affect, the Interests nor, to the best of Bligh's knowledge, the
Joint Operations or the Joint Assets. Bligh is not (a) subject to any continuing
court or administrative order, writ, injunction or decree applicable in any way
to the Interests, the Joint Operations or the Joint Assets, or (b) in default
with respect to any such order, writ, injunction or decree. Bligh does not know
of any reasonable basis for any such action, proceeding or investigation, and
has not received any notice from any governmental authority or any other person
claiming any violation or repudiation of the Interests, the Joint Operations or
the Joint Assets or any violation of any law, rule, regulation, ordinance,
order, decision or decree of any governmental authority.
Section 3.16 Accuracy of Information Furnished and Representations. All
information furnished to Buyer or Swift by Bligh herein or in any exhibit hereto
is, and as of the Closing Date will be, true, correct and complete and such
information states all facts required to be stated therein or necessary to make
the statements therein, in light of the circumstances under which such
statements were made and in light of the knowledge of Swift and Buyer in
relation to the interests, true, correct and complete in all respects. No
representation or warranty by Bligh in this Agreement or any agreement or
document delivered by Bligh pursuant to this Agreement contains or will contain,
as of the Closing Date, an untrue statement of a material fact or omits or will
omit to state a material fact necessary to make the statements contained in any
such representation or warranty, in light of the circumstances under which they
were made, not misleading.
12
Section 3.17 Condition of Certain of the Interests. There are no material
defects in any of the Property included in the Interests nor, to the best of
Bligh's knowledge, in any of the Joint Property which would prevent the use and
ownership of the Interests from continuing in accordance with prior practice.
Section 3.18 Data and Records.
(a) At or prior to Closing, Bligh will deliver to Buyer in
Wellington, New Zealand any and all documents, records and
other items which constitute Data included in the Interests
or Records included in the Interests. Such documents,
records and other items delivered to Buyer are all of the
items constituting or relating to Data included in the
Interests or Records included in the Interests. Copies of
all of such items are maintained, and will until the Closing
Date be available for review, at Bligh's Australian office.
At our prior to the Closing Date, all copies of Data
included in the Interests and Records included in the
Interests will have either been delivered to Buyer in
Wellington, New Zealand or destroyed (and, in the case of
destruction, will produce a certificate to that effect from
a responsible officer of Bligh). The Data included in the
Interests and the Records included in the Interests, and the
information contained therein, are subject to the
confidentiality provisions as stated in Section 10.4 below.
Bligh has not disclosed any Data included in the Interests
or Records included in the Interests, or the information
contained therein, to any third-party, except as may have
been publicly disclosed by Bligh prior to the Closing Date
to: (i) Bligh's advisers, agents, consultants, personnel,
counsel or accountants, (ii) the public, through any public
filing of Bligh; or (iii) pursuant to any confidentiality
undertaking having similar effect to the confidentiality
provisions stated in Section 10.4 below. Bligh shall not,
after the date hereof, use or disclose Data included in the
Interests or Records included in the Interests, or the
information contained therein, to any third-party.
(b) Unless otherwise indicated, references to Joint Data and
Joint Records in this Section 3.18(b) refer only to Joint
Data and Joint Records in the possession of Bligh. At or
prior to closing, Bligh will deliver to Buyer in Wellington,
New Zealand any and all documents, records and other items
which constitute Joint Data or Joint Records. Such
documents, records and other items delivered to Buyer are
all of the items constituting or relating to Joint Data or
Joint Records in Bligh's possession. Copies of all such
items are maintained, and will until the Closing Date be
available for review, at Bligh Australia's office. At or
prior to the Closing Date, all copies of Joint Data and
Joint Records will have either been delivered to Buyer in
Wellington, New Zealand or destroyed (and, in the case of
destruction, will produce a certificate to that effect from
a responsible officer of Bligh). The Joint Data (whether or
not in Bligh's possession) and the Joint Records (whether or
not in Bligh's possession) and the information contained
therein, are subject to the confidentiality provisions
stated in Section 10.4 below and Bligh has not disclosed any
of the Joint Data (whether or not in Bligh's possession) or
the Joint Records (whether or not in Bligh's possession), or
the information contained therein, to any third-party,
except as may have been publicly disclosed by Bligh prior to
the Closing Date to: (i) Bligh's advisers, agents,
consultants, personnel, counsel or accountants, (ii) the
public, through any public filing of Bligh, (iv) the
Australian Stock Exchange, through any application or filing
of Bligh Australia, or (v) pursuant to any confidentiality
undertaking having similar effect to the confidentiality
provisions stated in Section 10.4 below. Bligh shall not,
after the date hereof, use or disclose any Joint Data
(whether or not in Bligh's possession) or Joint Records
(whether or not in Bligh's possession) or the information
contained therein, to any third-party.
13
Section 3.19 Environmental Compliance. Except as is set forth on Exhibit
3.19,
a) To the best of its knowledge and information, Bligh has
obtained and maintained in effect all environmental and
health and safety permits, licenses, approvals, consents,
certificates and other authorizations necessary for the
ownership of the Interests have been obtained and
maintained, and Bligh is not aware of any failure to obtain
and maintain such in relation to the conduct of the Joint
Operations or the ownership of the Joint Assets
("Environmental Permits");
(b) Bligh has not received any notice of any Environmental Claim
(hereinafter defined), Environmental Liabilities
(hereinafter defined) or any violation or non-compliance
with any Environmental Law (hereinafter defined) or with the
terms or conditions of any Environmental Permit, arising
from, based upon, associated with or related to the
Interests or the conduct of the Joint Operations or the
ownership of the Joint Assets;
(c) Bligh is not otherwise aware of any facts, conditions or
circumstances in connection with, related to or associated
with the Interests, the conduct of the Joint Operations or
the ownership of the Joint Assets that could reasonably be
expected to give rise to any Environmental Claim,
Environmental Liabilities or any claim or assertion that the
Interests or the conduct of the Joint Operations or the
ownership of the Joint Assets is not in compliance with
Environmental Laws or the terms or conditions of any
Environmental Permit.
As used in this Agreement, the term "Environmental Claim" shall mean any
third party environmental or health and safety claim, demand, filing,
investigation, administrative proceeding, action, suit or other legal
proceeding, whether direct, indirect, contingent, pending, threatened or
otherwise. As used in this Agreement, the term "Environmental Laws" shall mean
all applicable environmental and health and safety laws, rule, regulations,
ordinances, orders, decisions and decrees of all governmental authorities. As
used in this Agreement, the term "Environmental Liabilities" shall mean any and
all liabilities arising from, based upon, associated with or related to (i) any
Environmental Permit, (ii) any Environmental Claim, (iii) any Environmental Law
or (iv) the presence, handling, management, storage, transportation, processing,
treatment, disposal, release, threatened release, migration or escape of
Environmental Contaminants, (including, without limitation, all costs arising
under any theory of recovery, in law or at equity), whether based on negligence,
strict liability, or otherwise, including, without limitation, remediation,
removal, response, restoration, abatement, investigative, monitoring, personal
injury, and property damage costs and all other related costs; expenses, losses,
damages, penalties, fines, liabilities and obligations (including interest paid
or accrued, attorneys' fees, and court costs).
14
Section 3.20 Questionable Payments. Neither Bligh, nor, to the best
knowledge of Bligh, any of Bligh's current or former directors, officers,
employees, agents, or representatives, in their capacities as such, have, to the
extent that doing so would be a violation of any applicable law with respect to
the ownership of the Interests,
(a) used any corporate funds for any contributions, gifts,
entertainment or other expenses relating to political
activity, or used any corporate funds to reimburse any
person for any such payment,
(b) used any corporate funds for any direct or indirect payments
to any foreign or domestic government officials or
employees,
(c) established or maintained any account or unrecorded fund of
corporate monies or other assets,
(d) made any false, fictitious or misclassified entries on the
books and records of Bligh,
(e) made any bribe, rebate, payoff, influence payment, kickback
or other payment of any nature, or
(f) made any material favor or gift which is not deductible for
applicable tax purposes.
Section 3.21 Limitations of Representations and Warranties. Bligh makes no
representations or warranties except as expressly set forth in this Article III
and in particular, and without limiting the generality of the foregoing, Bligh
hereby negates any and all representations or warranties, whether contained in
any information memorandum or otherwise, except for those set forth above in
this Article III, with respect to (i) the quantity, quality or recoverability of
petroleum substances produced from the area covered by the Interests; (ii) any
estimates of the value of the Interests or the revenues applicable to future
production therefrom; (iii) quality or value of any engineering, geological or
other interpretations or economic evaluations respecting the Interests; (iv) the
rates of production of petroleum substances from the area covered by the
Interests; (v) the quality, condition or serviceability of the Interests; or
(vi) the suitability of their use for any purpose.
Section 3.22 Representations and Warranties Concerning Securities. As of
the Closing Date, Bligh hereby makes the following representations and
warranties to and for the benefit of Swift and Buyer:
15
(a) Bligh Australia is a corporation that has not been organized
or incorporated under the laws of the United States.
(b) Bligh Australia was not formed by a U.S. person (as that
term is defined in Regulation S under the 1933 Act) for the
purpose of investing in securities not registered under the
1933 Act.
(c) Bligh Australia has assets in excess of U.S. $5,000,000.
(d) Bligh Australia is not acquiring the Shares for the account
or benefit of any U.S. person. The acquisition of the Shares
by Bligh is for Bligh's own account and is not with a view
to, or for offer or sale for Swift in connection with, the
distribution in the United States of any of the Shares in
violation of the 1933 Act, the 1934 Act or any U.S. state
securities laws (collectively, the "Securities Acts"). Bligh
is not participating and does not have a participation in
any such distribution or the underwriting of any such
distribution.
(e) Bligh understands and acknowledges that the Shares have not
been registered under the Securities Acts, are being offered
to Bligh in a transaction not requiring registration under
the Securities Acts, and may not be offered, sold or
otherwise transferred by Bligh in the United States except
in compliance with the registration requirement of the
Securities Acts or pursuant to an exemption therefrom.
(f) Bligh understands and acknowledges that Swift is relying on
the representations contained in this Section 3.22 (a)
through (e), (i) and (j) supplied by Bligh in connection
with its determination of whether to issue the Shares to
Bligh, and represents that any and all information that
Bligh has supplied to Swift or its representatives or agents
in connection with the determination of whether to issue the
Shares to Bligh under this Agreement is true and complete.
(g) Bligh understands and acknowledges that until such time as
the Registration Statement is declared effective by the SEC,
Bligh does not intend to sell the Shares other than by means
of Compliant Sales as described in Section 5.7(c) and
therefore Swift will place stop transfer notations in its
stock transfer book and will not register the sale of the
Shares unless made in accordance with the Securities Acts
and this Agreement.
(h) Bligh has previously obtained (i) Swift's Reports on Form
10-Q for the quarterly periods ended March 31, 2002 and June
30, 2002 and Swift's Report on Form 10-K for the years ended
December 31, 2001, 2000 and 1999 and (ii) Swift's press
releases since August 13, 2002 (all documents referred to
collectively as "Swift's Disclosure Documents"). Bligh
confirms that in addition to Swift's Disclosure Documents,
Bligh has had access to and an opportunity to inspect all
relevant business, financial and other corporate
information, materials and data of Swift which Bligh deems
necessary to make an informed investment judgment with
respect to Swift and the acquisition of the Shares and to
evaluate the merits and risks of Bligh investment in the
Shares. Additionally, Bligh confirms that it has had an
opportunity to ask questions of the directors and executive
officers of Swift and to receive satisfactory answers
respecting, and to obtain such additional information as
Bligh requested regarding, the Shares and Swift and Swift's
financial condition, affairs, business and prospects.
16
(i) In acquiring the Shares, Bligh is not relying upon any
information, other than that obtained in Bligh's own
independent review of Swift's Disclosure Documents, its
other publicly available information about Swift and other
information about Swift described in paragraph (h) of this
Section 3.22.
(j) Bligh is aware that no U.S. federal or state governmental
authority has made any finding or determination as to the
fairness of an investment in the Shares, nor any
recommendation nor endorsement with respect thereto.
(k) Bligh understands and acknowledges that Swift will place
stop transfer notations in its stock transfer book with
respect to the certificates representing the Shares in order
to provide notice of the Volume Limitation on resale, as
described in Section 5.7(c) - (e). Swift will remove stop
transfer notations on or with respect to any new
certificates representing the Shares that are sold under the
Registration Statement and in compliance with the terms of
this Agreement.
17
ARTICLE IV
Buyer's and Swift's Covenants
Section 4.1 Consummation of Agreement. Buyer and Swift agree to use its
best efforts to cause the consummation of the transactions contemplated by this
Agreement in accordance with its terms and conditions, including cooperating
with Bligh and using best efforts to obtain each approval or consent, or make
each filing or notification, as may be required to consummate the transactions
contemplated by this Agreement, recognizing that a failure to obtain any such
approval or consent, or a failure to make any such filing or notification, will
be a failure to fulfill a condition precedent to the obligations of Bligh, as
hereinafter described in Article VII.
Section 4.2 Registration on Form S-3. On the first business day following
the day of conclusion of the Closing, Swift shall file with the SEC a
registration statement on Form S-3 (together with any amendments and supplements
thereto, the "Registration Statement") for the purpose of registering the Shares
for resale by Bligh under the 1933 Act. Swift represents to Bligh that Swift
meets the Registrant Requirements of General Instruction I.A to SEC Form S-3,
and the Transaction Requirements of General Instructions I.B.1 and I.B.3 of SEC
Form S-3. Section 1.42 Registration Procedures. In connection with Swift's
obligations with respect to the Registration Statement pursuant to Section 4.2
hereof, Swift shall use its reasonable best efforts to effect or cause the
registration of the Shares under the 1933 Act to permit the offer and sale of
such Shares by Bligh in accordance with Bligh's intended method or methods of
distribution thereof, and pursuant thereto, Swift shall, as soon as reasonably
possible:
(a) use its reasonable best efforts to cause the Registration
Statement to become effective as promptly as practicable
after filing;
(b) prepare and file with the SEC such amendments and
supplements to the Registration Statement and the prospectus
used in connection therewith as may be necessary to maintain
the effectiveness of the Registration Statement for a period
of one year after the Closing Date except as provided for
below in this Section 4.3 and in Section 5.7(c) below, and
comply with the provisions of the 1933 Act and the 1934 Act
with respect to the disposition of all of the Shares to be
included in such Registration Statement during such
applicable period in accordance with the methods of
disposition disclosed to Swift by Bligh;
(c) not less than five business days before filing the
Registration Statement or related prospectus or any
amendments or supplements thereto, furnish to Bligh and its
counsel if any, copies of all such documents proposed to be
filed (including exhibits), and Swift will not file any such
document with the SEC if Bligh shall reasonably object to
information in such a document concerning Bligh within three
business days of its receipt of such document;
18
(d) promptly notify Bligh (i) when the Registration Statement,
the prospectus or any prospectus supplement or
post-effective amendment has been filed, and, with respect
to the Registration Statement or post-effective amendment,
when the same has become effective, (ii) of any request by
the SEC for amendments or supplements to the Registration
Statement or the prospectus or for additional information,
(iii) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement
or the initiation of any proceedings for that purpose, (iv)
of the receipt by Swift of any notification with respect to
the suspension of the qualification of the Shares for sale
in any jurisdiction or the initiation or threatening of any
proceeding for such purpose, or (v) at any time when a
prospectus is required to be delivered under the 1933 Act,
of the happening of any event as a result of which the
Registration Statement, prospectus, any prospectus
supplement, or any document incorporated by reference in any
of the foregoing contains an untrue statement of a material
fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing;
(e) use its reasonable best efforts to obtain the withdrawal of
any order suspending the effectiveness of the Registration
Statement or any post-effective amendment thereto at the
earliest practicable date;
(f) in connection with an underwritten offering of Shares,
promptly prepare a revised prospectus, a prospectus
supplement or post-effective amendment that complies with
the 1933 Act and that includes such information as Swift and
the managing underwriter or underwriters of such offering
may deem reasonably appropriate; and make all required
filings of such prospectus supplement or post-effective
amendment promptly after notification of the matters to be
included in such prospectus supplement or post-effective
amendment;
(g) furnish to Bligh and each underwriter, if any, of the Shares
being sold such number of copies of the Registration
Statement, each amendment and supplement thereto (in each
case including all exhibits thereto), the prospectus
included in the Registration Statement and such other
documents as Bligh and the underwriter, if any, may
reasonably request in order to facilitate the disposition of
the Shares; at any time when Bligh has not been given notice
of the occurrence of any event described in Section 4.3
(d)(iii), (iv) or (v) above, or when Swift has not been
given the notice described in the last sentence of Section
4.3, Swift consents to the use of the prospectus or any
amendment or supplement thereto by Bligh and the
underwriters in connection with the offering and sale of the
Shares covered by the prospectus or any supplement or
amendment thereto;
(h) use its reasonable best efforts to (i) register or qualify
the Shares to be included in the Registration Statement
hereunder under such other securities laws or blue sky laws
of such jurisdictions in the United States as Bligh and each
managing underwriter, if any, of the Shares being sold shall
reasonably request, (ii) keep such registrations or
qualifications in effect for so long as the Registration
Statement remains in effect and (iii) take any and all such
actions as may be reasonably necessary or advisable to
enable Bligh and the underwriter, if any, to consummate the
disposition in such jurisdictions of such Shares; provided,
however, that Swift shall not be required for any such
purpose to (A) qualify generally to do business as a foreign
corporation in any jurisdiction wherein it would not
otherwise be required to qualify but for the requirements of
this Section 4.3 (h), (B) subject itself to taxation in any
such jurisdiction, or (C) consent to general service of
process in any such jurisdiction;
19
(i) use its reasonable best efforts (A) to cause all of the
Shares to be registered for resale with or approved by such
other U.S. governmental agencies or authorities as may be
necessary by virtue of the business and operations of Swift
or to enable Bligh to consummate the disposition of such
Shares, and (B) to prepare and deliver to the transfer agent
for the Swift common stock (the "Transfer Agent") at Closing
such documentation as is necessary, cooperating in good
faith with Bligh and the Transfer Agent after the Closing to
promptly provide such additional documentation as is
necessary, including preparing and delivering to the
Transfer Agent at the effective date of the Registration
Statement an opinion, to enable the Transfer Agent to
transfer Shares that are sold pursuant to Compliant Sales
(hereinafter defined in Section 5.7(c));
(j) cooperate with Bligh and the managing underwriters, if any,
to furnish for delivery, at least two business days prior to
the closing of any sale, certificates representing Shares to
be sold; and, in the case of an underwritten offering,
enable such Shares to be registered in such names as the
managing underwriters may request at least two business days
prior to any sale of the Shares;
20
(k) enter into such customary agreements (including an
underwriting agreement) and take such other actions in
connection therewith as Bligh shall reasonably request in
order to expedite or facilitate the disposition of such
Shares, and in connection with an underwritten offering, at
the request of Bligh or the managing underwriters, (i) make
such representations and warranties to the underwriters in
form, substance and scope as are customarily made in an
underwritten offering; (ii) obtain such opinions of counsel
to Swift in customary form and covering such matters of the
type customarily covered by such opinion as the managing
underwriters may reasonably request, addressed to the
underwriters and dated the date of the closing under the
underwriting agreement; (iii) obtain "cold comfort" letters
from the independent certified public accountants of Swift
addressed to the underwriters and dated the effective date
of such Registration Statement and the date of the closing
under the underwriting agreement, such letters to be in
customary form and covering such matters of the type
customarily covered by such letters; and (iv) deliver such
documents and certificates as may be reasonably requested by
the managing underwriters to evidence compliance with clause
(i) above and with any customary conditions contained in the
underwriting agreement or other agreement entered into by
Swift;
(l) otherwise use its reasonable best efforts to comply with all
applicable rules and regulations of the SEC, and make
available to its security holders, as soon as reasonably
practicable, an earning statement covering a period of at
least twelve months which shall satisfy the provisions of
Section 11(a) of the Securities Act and Rule 158 thereunder.
Notwithstanding anything herein to the contrary, at any time after the
effectiveness of the Registration Statement, Swift shall be entitled, by
notifying Bligh, to postpone or suspend for a reasonable period of time (not to
exceed 90 days in the aggregate) the offering of any Shares if Swift shall
determine in good faith that such offering is reasonably likely to interfere
with a pending or contemplated financing, merger, sale or acquisition of assets,
recapitalization or other corporate action or policies of Swift. If Swift elects
to so postpone or suspend the offering of any Shares, then Swift shall, to the
extent necessary, amend or supplement the Registration Statement to permit the
offering of Shares immediately following the end of such postponement or
suspension, it being understood that Swift may postpone or suspend the offering
of Shares only twice in any 365 day period for a period not to exceed in the
aggregate 90 days. The one-year period referred to in Section 4.3(b) shall be
extended by the number of days that the offering of the Shares is suspended
pursuant to this paragraph.
Upon the occurrence of any event described in Section 4.3 (d)(v) above,
Swift shall promptly prepare and furnish to Bligh and each underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended so that,
as thereafter delivered to the purchasers of the Shares, such prospectus shall
not contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing. Bligh agrees that
upon receipt of any notice from Swift of the happening of any event of the kind
described in Section 4.3 (d)(v) hereof, Bligh shall forthwith discontinue the
disposition of Shares pursuant to the Registration Statement applicable to such
Shares until Bligh receives copies of an amended or supplemented Registration
Statement or prospectus, and if so directed by Swift, Bligh shall deliver to
Swift all copies, other than permanent file copies, then in Bligh's possession
of the prospectus covering such Shares at the time of receipt of such notice.
21
Swift may require Bligh to furnish to Swift such information regarding
Bligh and the plan of distribution of such Shares as Swift may from time to time
reasonably request in writing in order to comply with the 1933 Act. Without
limiting the foregoing, Swift may suspend its preparation of the Registration
Statement, if Bligh has not confirmed to Swift in writing, within three business
days after a written request by Swift, the accuracy and completeness of the
information with respect to Bligh and its intended plan of distribution which is
required by Items 507 and 508 of Regulation S-K under the Securities Act for
disclosure in the Registration Statement or the prospectus included therein.
Bligh agrees to notify Swift as promptly as practicable of any inaccuracy or
change in information previously furnished by Bligh to Swift or of the happening
of any event in either case as a result of which the Registration Statement
contains an untrue statement of a material fact regarding Bligh or the
distribution of such Shares or omits to state any material fact regarding Bligh
or the distribution of such Shares required to be stated therein or necessary to
make the statements therein not misleading in light of the circumstances then
existing, and to promptly furnish to Swift any additional information required
to correct and update any previously furnished information or required such that
such prospectus shall not contain, with respect to Bligh or the distribution of
such Shares, an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading in light of the circumstances then existing.
22
ARTICLE V
Bligh's Covenants
Bligh Australia and Seller, jointly and severally, agree that from the date
hereof to the Closing Date:
Section 5.1 Business Operations and Consummation of Agreement. Bligh shall
own and deal with the Interests only in the ordinary course of business, and
will (a) maintain current methods of management and operations and not incur
obligations or undertake any transactions relating to the Interests other than
in the ordinary course of business; (b) use best efforts to preserve the
Interests intact and to retain its present customers and suppliers; (c) not
dispose of, encumber or relinquish any of the Interests; (d) not waive,
compromise or settle any right or claim that would adversely affect the
ownership or value of the Interests; (e) not waive any material right or cancel
any contract, debt or claim, nor assume or enter into any contract or permit
outside the ordinary course of business as it relates to the ownership of the
Interests, and (f) use its best efforts to cause the consummation of the
transactions contemplated by this Agreement in accordance with its terms and
conditions, including cooperating with Buyer and Swift and using its best
efforts to obtain each approval or consent, or make each filing or notification,
as may be required to consummate the transactions contemplated by this
Agreement, recognizing that a failure to obtain any such approval or consent, or
a failure to make any such filing or notification, will be a failure to fulfill
a condition precedent to the obligations of Buyer and Swift, as hereinafter
described in Article VI. Bligh shall not take any action that might reasonably
be expected to impair the Interests without the prior consent of Buyer, or take
or fail to take any action that would cause or result in any of the
representations or warranties made in Article III hereof to be inaccurate at the
time of Closing, or preclude Bligh from making such representations and
warranties at the Closing.
Section 5.2 Access and Future Cooperation. In addition to the examinations
and inspections called for by Section 6.6 hereof, Bligh shall until the Closing
Date continue to make available, or provide for review at Bligh's Australian
office during normal business hours, to Buyer and its authorized
representatives, any and all documents, records, properties and any other
information relating to the Interests, the Joint Operations and the Joint
Assets, subject to contractual and fiduciary obligations and limits, all for the
sole purpose of permitting Buyer and Swift to become familiar with the
Interests, the Joint Operations and the Joint Assets.
Section 5.3 Material Change. Prior to the Closing, Bligh shall promptly
inform Buyer in writing of any material adverse change in the condition of the
Interests, or any event that causes the representations and warranties made in
Article III to be inaccurate, to the extent such change or event is known to
Bligh or should reasonably be known to Bligh in the ordinary course of the
ownership of the Interests. Any such disclosure shall not be deemed a waiver by
Buyer of any resulting breach of a representation or warranty of Bligh contained
in this Agreement.
Section 5.4 Consents, Approvals and Notifications of Third Parties. Prior
to the Closing Date, Bligh shall use its best efforts, and will cooperate with
Buyer and Swift to the extent necessary, to obtain each written consent or
approval of, and comply with any notification or filing requirement of, each
governmental authority or other third party, or obtain a waiver of such consent,
approval, notification or filing requirement, and obtain a waiver of each
preferential right or consent or notice right of any third party relating to the
Interests, the Joint Operations and the Joint Assets, as may be required for the
consummation of the transactions contemplated by this Agreement.
Section 5.5 No Negotiation with Others. Between the date of execution of
this Agreement and Closing, Bligh will not negotiate with, or initiate,
encourage, or solicit any inquiries, offers or proposals of, any person, other
than Buyer and Swift, with respect to the sale of the Interests.
23
Section 5.6 Information for Tax Returns. Bligh shall cooperate with Buyer
after the Closing Date by providing Buyer, as soon as reasonably practical upon
request, such records and other information regarding the Interests, the Joint
Operations and the Joint Assets as may reasonably be requested from time to time
by Buyer in connection with the preparation or audit of any and all tax returns,
audits, disputes, refund claims or litigation relating thereto; provided,
however, that such information will be provided to Buyer promptly upon request
to the extent that any delay could cause Buyer to be unable to meet deadlines
with respect to reviewing and preparing such information. In such connection,
Bligh will afford Buyer's independent tax advisors, and such other persons as
may be mutually agreed upon, access to books and records or relating to the
Interests; provided, however, that Buyer shall cause its independent tax
advisors and such other persons to hold in strict confidence all such
information (except as required to be disclosed in connection with such tax
returns and audits, disputes, refund claims and litigation relating thereto).
Section 5.7 Expenses of Registration, Restriction on Resale of the Shares.
(a) With respect to the preparation and filing of the
Registration Statement and complying with securities or blue
sky laws and regulations of any U.S. jurisdiction, if the
SEC does not review and issue any comment on the
Registration Statement, then Swift shall bear the full
amount of the filing fees, printing expenses, Swift's legal
and accounting fees and other reasonable expenses.
(b) If, with respect to the Registration Statement, the SEC
reviews and issues any comment on the Registration
Statement, and/or on any document incorporated therein by
reference, this subsection 5.7 (b), and not subsection
5.7(a), shall apply. In such case, Swift shall bear the full
amount of the filing fees, printing expenses, Swift's legal
and accounting fees and other reasonable expenses.
(c) For a period of one year after the Closing Date, Bligh will
only sell the Shares in Compliant Sales. "Compliant Sales"
are sales of Shares that are both (a) made in compliance
with the Volume Limitation (hereinafter defined) and (b)
made only under the Registration Statement. In the event
that Bligh sells any of the Shares in a transaction which
does not qualify as a Compliant Sale, Swift may at any time
thereafter withdraw the Registration Statement. Prior to
Bligh pledging or otherwise granting a bona fide lien or
security interest in any or all of the Shares to a third
party ("Bona Fide Pledgee") for value, Bligh must notify the
Bona Fide Pledgee in writing of, and the Bona Fide Pledgee
must agree to comply with, the Volume Limitation. Bligh, any
Bona Fide Pledgee or any party who acquires any of the
Shares from a Bona Fide Pledgee upon foreclosure of any lien
or security interest in the Shares are herein referred to
collectively as the "Limited Parties".
24
(d) In the aggregate, the Limited Parties may not sell or
otherwise dispose of, in any given Calendar Week
(hereinafter defined), more than a total of 60,000 of the
Shares (the "Volume Limitation"). A Calendar Week shall
begin on each Monday (New York City, New York, United States
time) and continue through the following Sunday. Any
unaffiliated bona fide purchaser for full value will not be
subject to the Volume Limitation.
(e) Swift will place a stop transfer notation in its stock
transfer book with respect to the Shares in order to enforce
the Volume Limitation, which notation shall not be removed
until the expiration of one year after the Closing Date or
the sale of all of the Shares through Compliant Sales.
Without limiting other remedies of Swift, Bligh Australia
and Seller, jointly and severally, agree to indemnify and
hold harmless Buyer and Swift against any and all claims,
liabilities, damages, costs or expenses which Buyer or Swift
may incur or which may be asserted against Buyer or Swift by
a third party, and which arise out of, or result from, (i) a
sale or disposition of any of the Shares which does not
comply with the Volume Limitation, (ii) the failure or
refusal of the Transfer Agent to give effect to a sale due
solely to a breach by one or more of the Limited Parties of
the Volume Limitation, and (iii) a sale or disposition by
Bligh of any of the Shares which does not qualify as a
Compliant Sale.
Section 5.9 Hedging Transactions. Bligh acknowledges that it may not, and
agrees that it will not, engage in any hedging transactions involving the Shares
unless any such transactions comply with the Securities Acts.
25
ARTICLE VI
Buyer's and Swift's Conditions Precedent
Except as may be waived in writing by Buyer or Swift, the obligations of
Buyer and Swift hereunder are subject to the fulfillment or continued
satisfaction on the Closing Date of each of the following conditions:
Section 6.1 Representations and Warranties. The representations and
warranties of Bligh contained herein shall have been true and correct in all
material respects when made, and shall be true and correct in all material
respects on and as of the Closing Date, as though made on and with reference to
the Closing Date, and Buyer and Swift shall not have discovered any error,
misstatement or omission therein which, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the Interests.
Section 6.2 Covenants. Bligh shall have performed and complied in all
material respects with all covenants and conditions required by this Agreement
to be performed and complied with by them on or prior to the Closing Date.
Section 6.3 Proceedings. On the Closing Date, no action, proceeding or
order by any court or governmental body or agency or third party shall have been
threatened in writing, asserted, instituted or entered, to restrain or prohibit
the carrying out of the transactions contemplated by this Agreement or which
would materially affect the ability of the Buyer, or Swift, to consummate the
transactions contemplated by this Agreement.
Section 6.4 No Material Adverse Change. With respect to the Interests, the
Joint Operations and the Joint Assets, no material, adverse change in the
assets, business, operations or financial condition shall have occurred prior to
the Closing Date, provided that a change in the prices at which petroleum
substances may be sold or changes affecting the oil and gas industry generally
shall not be regarded as a material adverse change in the Interests, Joint
Operations or Joint Assets.
Section 6.5 Consents. All consents, approvals, filings and notifications
required to be obtained, made or given for the assignment of the Interests to
Buyer, or as otherwise required for the consummation of the transactions
contemplated hereby, shall have been obtained, including, but not limited to,
the consent of, notification to, approval of, or filing made with, (or a waiver
of such issued by) the appropriate governmental agencies, specifically including
the New Zealand Minister of Energy, and any third parties, with respect to the
transfer of the Interests.
Section 6.6 Due Diligence. Buyer, acting through its own advisers, agents,
consultants, personnel, counsel, accountants or other representatives designated
by Buyer, shall have been afforded full and complete opportunity to inspect
and/or examine the Interests and the books and records, titles and leases to
properties, loans and other agreements, any pending or threatened litigation,
and any other matters pertaining to the Interests. At the conclusion of any such
inspection and/or examination (if any) Buyer shall have determined that no
materially adverse condition exists with respect to the Interests, their
condition or any matter pertaining thereto.
Section 6.7 Documents to be Delivered by Bligh. In order to consummate the
transactions contemplated hereby, the following documents shall be delivered by
Bligh to Buyer at the Closing:
26
(a) appropriate documents transferring the Interests from Seller
to Buyer;
(b) true, correct and complete copies of Bligh Australia's and
Seller's Certificate and Articles of Incorporation, and all
amendments thereto, and other governing documents, duly
certified as of a recent date by duly appointed and
authorized officers;
(c) a good standing certificate issued by the Australian
Corporate Registry, with respect to Bligh Australia, and
issued by the equivalent governmental agency or similar
evidence, with respect to Seller, dated as of a recent date,
duly certifying as to the existence and good standing of
each as a corporation under the laws of Australia and New
Zealand, respectively;
(d) written instruments evidencing all consents, approvals,
notifications and filings, or waivers of such, necessary for
Bligh to consummate the transactions contemplated hereby;
(e) for each of Bligh Australia and Seller, a certificate duly
executed by a duly appointed and authorized officer or
director thereof that certifies (i) the due adoption by the
Board of Directors and/or by the shareholders of each, as
applicable, of corporate resolutions attached to such
certificate authorizing the transactions, the execution and
delivery of this Agreement and the other agreements and
documents contemplated hereby and the taking of all actions
contemplated hereby and thereby; (ii) the incumbency and
true signatures of those officers duly authorized to act on
behalf of each in connection with the transactions
contemplated hereby and this Agreement and to execute and
deliver this Agreement and other agreements and documents
contemplated hereby on behalf of Bligh Australia or Seller,
as applicable, (iii) that the copy of Bylaws of each
attached to such certificate is a true and correct copy of
such Bylaws and that such Bylaws have not been amended
except as reflected in such copy and (iv) that all of their
representations and warranties in this Agreement, whether
made by Bligh, Australia or Seller, are true, accurate and
complete as of the date hereof and as of the Closing Date as
if made on and as of the Closing Date, and that each of
their covenants and obligations to be performed pursuant to
this Agreement at or prior to the Closing, whether by Bligh
Australia or Seller, have been duly performed and complied
with;
(f) to the extent held by Seller, original copies of all permits
and licenses, and of all Contracts, Data, Records and other
documents, directly related to rights or interests included
in the Interests, and all amendments, supplements or
modifications thereto, together with a written assignment
thereof to Buyer;
(g) possession or constructive possession of the Interests;
(h) the opinions of counsel to Bligh, dated the Closing Date, in
the form and substance of Exhibit 6.7 hereto, provided that
the opinion of Bligh's New Zealand counsel is subject to
approval, with such revisions as necessary, from such New
Zealand counsel.
Section 6.8 Additional Instruments of Transfer. At the Closing, and at all
times thereafter as may be necessary, Bligh shall execute and deliver to Buyer
such other instruments of transfer as shall be reasonably necessary or
appropriate to vest in Buyer good and indefeasible title to the Interests and to
comply with the purposes and intent of this Agreement, as well as any other
agreements or documents necessary to consummate the transactions contemplated by
this Agreement.
27
ARTICLE VII
Bligh's Conditions Precedent
Except as may be waived in writing by Bligh, the obligations of Bligh
hereunder are subject to the fulfillment or continued satisfaction on the
Closing Date of each of the following conditions:
Section 7.1 Representations and Warranties. The representations and
warranties of Buyer and Swift contained herein shall have been true and correct
in all material respects when made, and shall be true and correct in all
material respects on and as of the Closing Date, as though made on and with
reference to the Closing Date, and Bligh shall not have discovered any error,
misstatement or omission therein which, individually or in the aggregate, could
reasonably be expected to have a material adverse effect on the financial
condition or business operations of Swift.
Section 7.2 Covenants. Buyer and Swift shall have performed and complied in
all material respects with all covenants or conditions required by this
Agreement to be performed and complied with by it prior to the Closing Date.
Section 7.3 Documents to be Delivered at Closing. Buyer and Swift shall
have delivered to Bligh at the Closing:
(a) the opinion of counsel(s) to Buyer and Swift, dated the
Closing Date, in the form and substance of Exhibit 7.3
hereto, provided that the opinion of Buyer's and Swift's New
Zealand counsel is subject to approval, with such revisions
as necessary, from such New Zealand counsel;
(b) a Certificate of an executive officer of each that certifies
(i) the due adoption by the Board of Directors and/or by the
shareholders of each, as applicable, of corporate
resolutions attached to such certificate authorizing the
transactions, the execution and delivery of this Agreement
and the other agreements and documents contemplated hereby
and the taking of all actions contemplated hereby and
thereby; (ii) the incumbency and true signatures of those
officers duly authorized to act on behalf of each in
connection with the transactions contemplated hereby and
this Agreement and to execute and deliver this Agreement and
other agreements and documents contemplated hereby on behalf
of Buyer or Swift, as applicable, (iii) that the copy of
Bylaws of each attached to such certificate is a true and
correct copy of such Bylaws and that such Bylaws have not
been amended except as reflected in such copy, and (iv) that
all of their representations and warranties in this
Agreement, whether made by Buyer or Swift, are true,
accurate and complete as of the date hereof and as of the
Closing Date as if made on and as of the Closing Date, and
that each of their covenants and obligations to be performed
pursuant to this Agreement at or prior to the Closing,
whether by Buyer or Swift, have been duly performed and
complied with;
(c) five legended certificates each evidencing 60,000 of the
Shares, and any and all documents to effect issuance of the
Shares in accordance with the terms of this Agreement;
28
(d) a copy of the opinion letter referred to in Section 4.3(i)
above to be delivered to the Transfer Agent by Swift's
counsel and written confirmation from the Transfer Agent
that such letter is satisfactory for the Transfer Agent's
purpose, namely, to enable the Transfer Agent to complete
the settlement of all Compliant Sales;
(e) in the event that Swift is required to make any filing with,
or provide notice to, the New York Stock Exchange with
respect to the Shares, a copy of such notice or filing; and
(f) other documents as necessary in connection with transferring
the Interests.
Section 7.4 Proceedings. At the Closing Date, no action, proceeding or
order by any court or governmental body or agency or third party shall have been
threatened in writing, asserted, instituted or entered, to restrain or prohibit
the carrying out of the transactions contemplated by this Agreement or which
would materially affect the ability of Bligh to consummate the transactions
contemplated by this Agreement.
Section 7.5 Consents. All consents, approvals, filings and notifications
required to be obtained, made or given for the assignment of the Interests to
Buyer, or as otherwise required for the consummation of the transactions
contemplated hereby, shall have been obtained, including, but not limited to,
(i) the consent of, notification to, approval of, or filing made with, (or a
waiver of such issued by) the appropriate governmental agencies, specifically
including the New Zealand Minister of Energy, and any other third parties if
required, with respect to the transfer of the Interests, and (ii) a waiver of
each preferential purchase right that affects the Interests, if any.
Section 7.6 No Material Adverse Change. No material, adverse change in the
assets, business, operations or financial condition of Swift shall have occurred
prior to the Closing Date, provided that a change in the prices at which
petroleum substances may be sold or changes affecting the oil and gas industry
generally shall not be regarded as material adverse change.
29
ARTICLE VIII
Indemnification
Section 8.1 Bligh's Indemnity. Subject to the terms and conditions of this
Article VIII and, specifically, Sections 8.5 and 8.8, Bligh Australia and
Seller, jointly and severally, agree to indemnify, release, defend and hold
Buyer, Swift and their officers, directors, agents, attorneys and affiliates
harmless from and against all losses, claims, obligations, demands, assessments,
penalties, liability, costs, damages, reasonable attorneys' fees and expenses,
(collectively, "Damages", provided that Damages shall not include any losses to
the extent caused by the gross negligence of the party to be indemnified or any
losses to the extent covered by proceeds actually received by the party to be
indemnified on insurance maintained by such party), asserted against or incurred
by Buyer or Swift by reason of or resulting from any of the following:
(a) A breach by Bligh of any representation, warranty or
covenant contained herein or in any agreement executed
pursuant hereto;
(b) Any and all Damages incurred by virtue of ownership of, or
in connection with, the Interests, and arising out of or
relating to acts, events or omissions which occurred prior
to the Closing Date, whether any such claims are asserted
prior to or after the Closing Date, except for the Assumed
Obligations;
(c) Any and all liabilities or obligations of Bligh, whether
arising prior to the Closing Date, except for the Assumed
Obligations; or
(d) Any tax filing or return or payment made, or position taken,
by Bligh or Seller in relation to any direct or indirect tax
or duty whatsoever, including, but not limited to, income
tax, government royalties, fringe benefit tax, energy
resources levy, if applicable, and customs and excise
duties, which any governmental authority challenges and
which results in an assertion of Damages against Buyer or
Swift.
Section 8.2 Buyer's and Swift's Indemnity. Subject to the terms and
conditions of this Article VIII, Buyer and Swift hereby agree to indemnify,
release, defend and hold Bligh and Bligh's officers, directors, agents,
attorneys and affiliates harmless from and against all Damages asserted against
or incurred by Bligh by reason of or resulting from any of the following:
(a) breach by Buyer or Swift of any representation, warranty or
covenant contained herein or in any agreement executed
pursuant hereto;
(b) the failure of Buyer or Swift to pay, perform and/or
discharge any of the Assumed Obligations; or
(c) any and all Damages incurred by virtue of ownership of, or
in connection with, the Interests, and arising out of or
relating to acts, events or omissions which occurred on or
after the Closing Date and which do not relate to a breach
of Bligh's representations, warranties or covenants under
this Agreement.
30
Section 8.3 Reclamation Obligations. The parties agree that all costs,
expenses, risks, liabilities and obligations respecting the abandonment of any
wells which are part of the Interests, closure, decommissioning and dismantling
of any facilities associated therewith and reclamation and restoration of all
sites shall be borne and paid for solely by Buyer and Swift, and Buyer and Swift
shall, in respect thereof, jointly and severally, indemnify, defend and save
harmless Bligh from and against any claims or demands by any person for or
resulting in expense, liability, loss, costs, claims or damages, direct or
indirect (including the effects of and the costs of complying with any order,
direction, or claim of any government, or agency, department, official or
tribunal thereof having jurisdiction) pertaining to the foregoing operations
conducted or failed to be conducted by Buyer or Swift.
Section 8.4 Securities Indemnification.
(a) Indemnification by Swift. Swift agrees to indemnify and hold harmless,
to the full extent permitted by law, Bligh, its officers, directors, trustees,
stockholders, employees, agents and investment advisers, and each person who
controls Bligh within the meaning of either Section 15 of the 1933 Act or
Section 20 of the 1934 Act, or is under common control with, or is controlled
by, Bligh, together with the officers, directors, trustees, stockholders,
employees and agents of such controlling person (collectively, the "Bligh
Controlling Persons"), from and against all Damages to which Bligh and the Bligh
Controlling Persons may become subject under the 1933 Act or otherwise, insofar
as such Damages (or proceedings in respect thereto) arise out of or are based
upon any untrue or alleged untrue statement of material fact contained in the
Registration Statement (or any amendment thereto) pursuant to which Shares were
registered under the 1933 Act, including all documents incorporated therein by
reference, or are caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, or are caused by any
untrue statement or alleged untrue statement of a material fact contained in the
prospectus included in the Registration Statement (as amended or supplemented if
Swift shall have furnished any amendments or supplements thereto), or are caused
by any omission or alleged omission to state therein a material fact necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading, except insofar as such Damages arise out of or are
based upon any such untrue statement or omission based upon information relating
to Bligh furnished in writing to Swift by Bligh specifically for use therein. In
connection with an underwritten offering, Swift will indemnify the underwriters
thereof, their officers and directors and each person who controls such
underwriters (within the meaning of either Section 15 of the 1933 Act or Section
20 of the 1934 Act) to the same extent as provided above with respect to the
indemnification of Bligh except with respect to information provided by the
underwriter specifically for inclusion therein.
(b) Indemnification by Bligh. Bligh agrees to indemnify and hold harmless
Swift, its officers, directors, trustees, stockholders, employees, agents and
investment advisers, and each person who controls Swift within the meaning of
either Section 15 of the 1933 Act or Section 20 of the 1934 Act, or is under
common control with, or is controlled by, Swift, together with the officers,
directors, trustees, stockholders, employees and agents of such controlling
persons, to the same extent as the foregoing indemnity from Swift to Bligh, but
only with reference to information relating to Bligh furnished to Swift in
writing by Bligh specifically for use in the Registration Statement (or any
amendment thereto) or the prospectus included in the Registration Statement (or
any amendment or supplement thereto); provided, however, that Bligh shall not be
obligated to provide such indemnity to the extent that such Damages result from
the failure of Swift to promptly amend or take action to correct or supplement
the Registration Statement or prospectus on the basis of corrected or
supplemental information provided in writing by Bligh to Swift for such purpose.
In no event shall the liability of Bligh hereunder be greater in amount than the
amount of the proceeds received by Bligh upon the sale of the Shares giving rise
to such indemnification obligation.
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Section 8.5 Conditions of Indemnification. The respective obligations and
liabilities of Bligh and Buyer and Swift (the "indemnifying party") to the other
(the "party to be indemnified") under Sections 8.1, 8.2, 8.3 and 8.4 hereof with
respect to claims resulting from the assertion of liability by third parties
shall be subject to the following terms and conditions:
(a) Within 20 days (or such earlier time as might be required to avoid
prejudicing the indemnifying party's position) after receipt of notice
of commencement of any action evidenced by service of process or other
legal pleading, or with reasonable promptness after the assertion in
writing of any claim by a third party, the party to be indemnified
shall give the indemnifying party written notice thereof together with
a copy of such claim, process or other legal pleading, and the
indemnifying party shall have the right to undertake the defense
thereof by representatives of its own choosing and at its own expense;
provided, however, that the party to be indemnified may participate in
the defense with counsel of its own choice and at its own expense.
(b) In the event that the party to be indemnified has not received written
notice from the indemnifying party, which notice must be received by
the 30th day after receipt of notice of any such claim (or, if
earlier, by the 10th day preceding the day on which an answer or other
pleading must be served in order to prevent judgment by default in
favor of the person asserting such claim), that the indemnifying party
has elected to defend against such claim, the party to be indemnified
will (upon further notice to the indemnifying party) have the right to
undertake the defense, compromise or settlement of such claim on
behalf of and for the account and risk of the indemnifying party and
at the indemnifying party's expense.
(c) Anything in this Section 8.5 to the contrary notwithstanding, the
indemnifying party shall not settle any claim without the consent of
the party to be indemnified unless such settlement involves only the
payment of money and the claimant provides to the party to be
indemnified a release from all liability in respect of such claim. If
the settlement of the claim involves more than the payment of money,
the indemnifying party shall not settle the claim without the prior
consent of the party to be indemnified.
(d) The party to be indemnified and the indemnifying party will each
cooperate with all reasonable requests of the other.
Section 8.6 Contribution. To the extent that the indemnification provided
for in paragraph (a) or (b) of Section 8.4 is unavailable to an indemnified
party or insufficient in respect of any Damages, then each indemnifying party
under such paragraph, in lieu of indemnifying such indemnified party thereunder,
shall contribute to the amount paid or payable by such indemnified party as a
result of such Damages in such proportion as is appropriate to reflect the
relative fault of Swift on the one hand and Bligh on the other hand in
connection with the statements or omissions that resulted in such Damages, as
well as any other relevant equitable considerations. The relative fault of Swift
on the one hand and of Bligh on the other hand shall be determined by a court of
competent jurisdiction by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by Swift or by
Bligh and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
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Notwithstanding the provisions of this Section 8.6, Bligh shall not be
required to contribute any amount in excess of the amount by which the total
price at which Bligh's Shares were offered to the public (less any underwriting
discounts and commissions) exceeds the amount of any damages which Bligh has
otherwise been required to pay by reason of such untrue statement or omission.
If indemnification is available under paragraph (a) or (b) of Section 8.4,
the indemnifying parties shall indemnify each indemnified party to the full
extent provided in such paragraphs without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 8.6.
Swift and Bligh agree that it would not be just or equitable if
contribution pursuant to this Section 8.6 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to herein. The amount paid or payable by an indemnified
party as a result of the Damages referred to in this Section 8.6 shall be deemed
to include, subject to the limitations set forth above, any legal or other
expenses reasonably incurred (and not otherwise reimbursed) by such indemnified
party in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. The remedies provided for in
this Section 8.6 are not exclusive and shall not limit any rights or remedies
which may otherwise be available to any indemnified party at law or in equity.
Section 8.7 Remedies Not Exclusive. The remedies provided in this Article
VIII shall not be exclusive of any other rights or remedies available by one
party against the other, either at law or in equity.
Section 8.8 Limitation on Liability. In no event shall the total
liabilities, on the one hand of Bligh to Buyer and Swift, or on the other hand
of Buyer and Swift to Bligh, under this Agreement, including without limitation
any liabilities relating to breaches of their respective representations and
warranties, exceed the Purchase Price as defined within and valued in accordance
with Section 1.4 hereof.
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ARTICLE IX
Termination
Section 9.1 Termination by Buyer or Swift. Buyer or Swift may terminate
this Agreement by written notice to Bligh prior to Closing if any of the
conditions precedent to its obligation to close contained within Article VI
either (a) have not been satisfied on or prior to the Closing Date, or were
satisfied prior to the Closing Date but did not remain satisfied through the
Closing Date, and (b) have not been waived on or prior to the Closing Date.
Further, Buyer or Swift may terminate this Agreement if the Closing has not
occurred on or before 1 November 2002 for any reason other than a failure by
Buyer or Swift to satisfy (to the extent that satisfaction is within the control
of Buyer or Swift) any of the conditions precedent to Bligh's obligation to
close pursuant to Article VII.
Section 9.2 Termination by Bligh. Bligh may terminate this Agreement by
written notice to Buyer prior to Closing if any of the conditions precedent to
its obligation to close contained within Article VII either (a) have not been
satisfied on or prior to the Closing Date, or were satisfied prior to the
Closing Date but did not remain satisfied through the Closing Date, and (b) have
not been waived on or prior to the Closing Date. Further, Bligh may terminate
this Agreement if the Closing has not occurred on or before 1 November 2002 for
any reason other than a failure by Bligh to satisfy (to the extent that
satisfaction is within the control of Bligh) any of the conditions precedent to
Buyer's and Swift's obligation to close pursuant to Article VI.
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ARTICLE X
Miscellaneous
Section 10.1 Amendment. This Agreement may be amended, modified or
supplemented only by an instrument in writing executed by the party against
which enforcement of the amendment, modification or supplement is sought.
Section 0.2 Assignment. Neither this Agreement nor any right created hereby
shall be assignable by any party hereto.
Section 10.3 Notice. Any notice or communication must be in writing and
given by depositing the same in the mail, addressed to the party to be notified,
postage prepaid and registered or certified with return receipt requested, or by
delivering the same in person. Such notice shall be deemed received on the date
on which it is hand-delivered or on the third business day following the date on
which it is so mailed. For purposes of notice, the addresses of the parties
shall be:
If to Bligh: Bligh Oil & Minerals N.L.
Level 10, Suite 1
100 William Street
Sydney, NSW 2011
Australia
Fax: (61) 2 9332 5050
For: Paul Nimmo
in each case with a copy to: [Attorneys for Bligh]
If to Buyer or Swift: Swift Energy New Zealand Ltd.
Level 19, PWC Tower
113 119 The Terrace
Wellington
Fax: (64) 9 472 7401
For: Jim Mitchell
In each case with a copy to: Simpson Grierson
Simpson Grierson Building
92-96 Albert Street
Private Bag 92518 Wellesley Street
Auckland
Fax: 64 9 977 5046
For: Rabin Rabindran
Any party may change its address for notice by written notice given to
the other parties.
Section 10.4 Confidentiality. The parties shall keep this Agreement and its
terms confidential. It is understood that Swift and Bligh Australia are publicly
traded companies and are required to comply with public disclosure requirements
of their respective jurisdictions. Swift and Buyer further understand that
drafts of Bligh's public disclosures are subject to prior review by the
Australian Stock Exchange. Neither Swift nor Bligh, nor their respective
affiliates, shall make any public disclosures regarding the transactions
contemplated by this Agreement without first obtaining the approval of the other
party, which approval shall not be unreasonably withheld. The parties hereto
agree that initial public disclosure of the transactions contemplated by this
Agreement will occur no earlier than the date of signing of this Agreement.
Swift and its affiliates, and Bligh and its affiliates, will issue separate
public disclosures with respect to the transactions contemplated by this
Agreement.
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In the event that the transactions contemplated by this Agreement are not
consummated for any reason whatsoever, the parties hereto agree not to disclose
or use any confidential information they may have concerning the affairs of the
other parties, except for information which is required by law to be disclosed.
Confidential information includes, but is not limited to: customer lists and
files, prices and costs, business and financial records, surveys, reports,
plans, proposals, financial information, stock ownership, liabilities and
litigation. Should the transactions contemplated hereby not be consummated,
nothing contained in this Section 10.4 shall be construed to prohibit the
parties hereto from operating a business in competition with each other.
In the event that the transactions contemplated by this Agreement are
consummated, Bligh, as well as any of Bligh's other affiliated entities,
recognize and acknowledge that they have had, currently have, and through the
Closing Date will have, access to and familiarity with the Data included in the
Interests, the Joint Data, the Records included in the Interests, and the Joint
Records. Bligh, as well as any of Bligh's other affiliated entities, also
recognize and acknowledge that the Data included in the Interests, the Joint
Data, the Records included in the Interests, and the Joint Records, are
valuable, special and unique assets. Bligh, as well as any of Bligh's other
affiliated entities, agree that on and after the Closing Date they shall not use
in any way or disclose any of the Data included in the Interests, the Joint
Data, the Records included in the Interests, or the Joint Records, directly or
indirectly, except as required by law. Bligh, as well as any of Bligh's other
affiliated entities, agree that on the Closing Date they will either deliver to
Buyer in Wellington, New Zealand or destroy (and, in the case of destruction,
will produce a certificate to that effect from a responsible officer of Bligh)
any and all Data included in the Interests, the Joint Data, the Records included
in the Interests, and the Joint Records which are in writing or other tangible
form and which are in their possession, including any and all excerpts and
copies thereof together with any related analyses, compilations or summaries. In
the event that a disclosure is required by law, Bligh will provide written
notice to Swift, prior to such disclosure if possible. As of the Closing Date,
the Data included in the Interests, the Joint Data, the Records included in the
Interests, and the Joint Records, shall be and remain the exclusive property of
Buyer and Swift.
Bligh acknowledges and recognizes that the enforcement of the provisions of
this Section 10.4 is necessary to ensure the preservation and continuity of the
ownership of the Interests purchased by Buyer pursuant hereto. Without limiting
any other remedy of Buyer and Swift, in the event of a breach or threatened
breach of the provisions of this Section, Buyer and Swift will be entitled to an
injunction restraining such breach, in whole or in part. Because of the
difficulty of measuring economic losses as a result of a breach of the
provisions of this Section and the immediate and irreparable damage that would
be caused for which Buyer and Swift would have no other adequate remedy, Bligh
agrees that such agreement may be enforced against them by injunctions,
restraining orders and other equitable actions.
Section 10.5 Entire Agreement. This Agreement, the exhibits hereto,
constitute the entire understanding among the parties with respect to this
subject matter hereof, and supersede all prior agreements and understandings
relating to the subject matter hereof, except that the obligations of any party
under any agreement executed pursuant to this Agreement shall not be affected by
this Section 10.5.
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Section 10.6 Costs, Expenses and Legal Fees. Whether or not the
transactions contemplated hereby are consummated, and except as provided in
Section 5.7(a) and Section 5.7(b), each party hereto shall bear its own costs
and expenses (including attorneys' fees) of preparation, negotiation and
consummation of this Agreement and the transactions contemplated hereby.
Section 10.7 Severability. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under present or future laws effective during
the term hereof, such provision shall be fully severable and this Agreement
shall be construed and enforced as if such illegal, invalid or unenforceable
provision never comprised a part hereof; and the remaining provisions hereof
shall remain in full force and effect and shall not be affected by the illegal,
invalid or unenforceable provision or by its severance herefrom. Furthermore, in
lieu of such illegal, invalid or unenforceable provision, there shall be added
automatically as part of this Agreement, a provision as similar in its terms to
such illegal, invalid or unenforceable provision as may be possible and be
legal, valid and enforceable.
Section 10.8 Survival of Representations, Warranties and Covenants.
Notwithstanding any investigation by any party thereto, the representations,
warranties, covenants, and other agreements contained herein shall survive the
Closing for a period (such period being referred to as the "Survival Period")
ending on the expiration of twenty four calendar months following the month in
which the Closing shall occur, and to the extent that any claims are asserted on
or before the expiration of the Survival Period with respect to any
representations or warranties, such representations or warranties shall continue
to survive after the Survival Period until such claim is finally resolved. In
the absence of fraud, however, no claim or action shall be commenced with
respect to a breach of any such representation or warranty, unless, within the
Survival Period, written notice specifying such breach in reasonable detail has
been provided to the party which made such representation or warranty.
Section 10.9 Governing Law. This Agreement and the rights and obligations
of the parties hereto shall be governed, construed and enforced in accordance
with the laws of New Zealand.
Section 10.10 Captions. The captions in this Agreement are for convenience
of reference only and shall not limit or otherwise affect any of the terms or
provisions hereof.
Section 10.11 Counterparts; Facsimile Execution. This Agreement may be
executed in counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument. A telecopy or
facsimile transmission of a signed counterpart of this Agreement shall be
sufficient to bind the party or parties whose signature(s) appear(s) thereon.
37
IN WITNESS WHEREOF, the undersigned parties have hereunto duly executed
this Agreement as of the date first written above.
SWIFT ENERGY NEW ZEALAND LIMITED
BUYER:
By:
------------------------------------
Its:
------------------------------------
SWIFT ENERGY COMPANY
PARENT CORPORATION OF BUYER:
By:
------------------------------------
Its:
------------------------------------
BLIGH OIL & MINERALS N.L.
PARENT CORPORATION OF BLIGH
By:
------------------------------------
Its:
------------------------------------
MARABELLA ENTERPRISES LIMITED
SELLER:
By:
------------------------------------
Its:
------------------------------------
BLIGH OIL & MINERALS (NZ) LIMITED
SELLER:
By:
------------------------------------
Its:
------------------------------------
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