As filed
with the Securities and Exchange Commission on May 19, 2009
Registration
No. 333-
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C.
20549
FORM S-3
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
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Texas
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SWIFT
ENERGY COMPANY
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20-3940661
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Texas
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SWIFT
ENERGY OPERATING, LLC
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20-3892961
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(State
or other jurisdiction of
incorporation
or organization)
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(Exact
name of registrant as specified in its charter)
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(I.R.S.
Employer
Identification
No.)
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16825
Northchase Drive, Suite 400
Houston,
Texas 77060
(281) 874-2700
(Address,
including zip code, and telephone number, including area code
of
registrants’ principal executive offices)
Laurent
A. Baillargeon
General
Counsel
16825
Northchase Drive, Suite 400
Houston,
Texas 77060
(281) 874-2700
(Name,
address, including zip code, and telephone number, including area code, of agent
for service)
Copies
to:
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Christopher
M. Abundis
Corporate
Counsel
Swift
Energy Company
16825
Northchase Drive, Suite 400
Houston,
Texas 77060
(281)
874-2571
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Donald
W. Brodsky
Judy
G. Gechman
Baker
& Hostetler LLP
1000
Louisiana Street
Suite
2000
Houston,
Texas 77002
(713)
646-1335
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Approximate date of commencement of
proposed sale to the public: From time to time
after this registration statement becomes effective, as determined by market
conditions and other factors.
If the
only securities being registered on this form are being offered pursuant to
dividend or interest reinvestment plans, please check the following
box. o
If any of
the securities being registered on this form are to be offered on a delayed or
continuous basis pursuant to Rule 415 under the Securities Act of 1933,
other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. þ
If this
form is filed to register additional securities for an offering pursuant to
Rule 462(b) under the Securities Act, please check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. o
If this
form is a post-effective amendment filed pursuant to Rule 462(c) under the
Securities Act, check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same
offering. o
If this
form is a registration statement pursuant to General Instruction I.D. or a
post-effective amendment thereto that shall become effective upon filing with
the Commission pursuant to Rule 462(e) under the Securities Act, check the
following box. o
If this form is a post-effective
amendment to a registration to a registration statement filed pursuant to
General Instruction I.D. filed to register additional securities or additional
classes of securities pursuant to Rule 413(b) under the Securities Act,
check the following box. o
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting
company. See the definitions of “large accelerated filer,”
“accelerated filer” and “”smaller reporting company” in Rule 12b-7 of the
Exchange Act. Check one:
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Large
accelerated filer þ
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Accelerated
filer o
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Non-accelerated
filer o
(Do
not check if Smaller reporting company)
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Smaller
reporting company o
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CALCULATION
OF REGISTRATION FEE
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Title
of Each Class of
Securities
to be Registered(1)
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Proposed
Maximum Aggregate Offering Price(1)(2)
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Amount
of
Registration
Fees(3)
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Debt
Securities(4)
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Common
Stock, par value $.01 per share(5)
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Preferred
Stock, par value $.01 per share(5)
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Depositary
Shares(6)
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Warrants
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Guarantees
of Debt Securities(7)
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Total
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$500,000,000
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$27,900
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(1)
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This
registration statement also covers such indeterminate amount of securities
as may be issued in exchange for, or upon conversion, redemption or
exercise of, as the case may be, debt securities, preferred stock,
depositary share or warrants registered hereunder, including under any
applicable anti-dilution provisions pursuant to 416(a) of the Securities
Act. Any securities registered hereunder may be sold separately
or as units with other securities registered hereunder. This
total amount also includes such securities as may, from time to time, be
issued upon conversion or exchange of securities registered hereunder, to
the extent any such securities are, by their terms, convertible into or
exchangeable for other securities.
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(2)
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An
indeterminate aggregate offering price and number or amount of debt
securities, common stock, preferred stock, depositary shares, warrants and
guarantees of debt securities is being registered as may from time to time
be sold at indeterminate prices, with a maximum aggregate offering price
not to exceed $500,000,000.
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(3)
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Not
specified as to each class of securities to be registered pursuant to
General Instruction II.D of Form S-3 under the Securities
Act. Pursuant to Rule 457(o) under the Securities Act, the
registration fee has been calculated on the basis of the maximum offering
price.
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(4)
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If
any debt securities are issued at an original
issue discount, then the offering price
of the debt securities shall be in
such amount as shall result in an
aggregate initial offering price not to
exceed $500,000,000, or the equivalent thereof in foreign
currencies, foreign currency units or composite
currencies, less the offering price of any securities
previously issued hereunder.
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(5)
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Attached
to each share of common stock is a preferred share purchase right pursuant
to the Rights Agreement (as Amended and Restated as of March 31, 1999, and
as further amended on December 12, 2005, and December 21, 2006) and the
Assignment Assumption, Amendment and Novation Agreement dated December 28,
2005 between Swift Energy Company and American Stock Transfer & Trust
Company, as Rights Agent. Until the occurrence of certain
prescribed events, none of which has occurred, the rights are not
detachable from the common stock nor exercisable and will be transferred
along with, and only with, the common stock. Accordingly, no
separate registration fee is payable with respect
thereto.
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(6)
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Such
indeterminate number of depositary shares will be represented by
depositary receipts. In the event that the Registrant elects to
offer to the public fractional interests in shares or preferred stock
registered hereunder, depositary receipts will be distributed to those
persons purchasing the fractional interest and the shares of preferred
stock will be issued to the Depository under the deposit
agreement.
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(7)
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In
accordance with Rule 457(n), no separate fee is payable with respect to
any guarantee of the debt securities being
registered.
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Each
Registrant hereby amends this Registration Statement on such date or dates
as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section
8(a) of the Securities Act of 1933, as amended, or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may
determine.
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The
information in this prospectus is not complete and may be changed. We may
not sell these securities until the registration statement filed with the
Securities and Exchange Commission is effective. This prospectus is not an
offer to sell these securities and it is not soliciting an offer to buy
these securities in any state where the offer or sale is not
permitted.
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SUBJECT
TO COMPLETION, May 19, 2009
Prospectus
$500,000,000
Debt
Securities
Common
Stock
Preferred
Stock
Depositary
Shares
Warrants
Guarantees
of Debt Securities
We may
offer and sell from time to time debt securities, common stock, preferred stock,
depositary shares, warrants and unsecured guarantees of debt
securities. Our subsidiary, Swift Energy Operating, LLC, a Texas
limited liability company, may guarantee the debt securities we
issue.
This
prospectus describes the general terms of the offered securities and the general
manner in which we will offer these securities. We will provide
specific terms of any offering in supplements to this prospectus. The
securities may be offered separately or together in any combination and as
separate series. You should read this prospectus and any supplement
carefully before you make your investment decision.
We may
offer and sell securities to or through one or more underwriters, dealer and
agents, or directly to purchasers, on a continuous or delayed
basis. If we use underwriters, dealers, or agents to sell the
securities, we will name them and describe their compensation in a prospectus
supplement. The net proceeds we expect to receive from these sales
will be described in the prospectus supplement.
Our
common stock is traded on the New York Stock Exchange under the symbol
“SFY.”
The
securities offered in this prospectus involve a high degree of
risk. You should carefully consider the matters set forth in “Risk
Factors” on page 3 of this prospectus, in any prospectus supplement or
incorporated by reference herein or therein in determining whether to purchase
our securities.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS
APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS PROSPECTUS IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date
of this prospectus is May 19, 2009
About
this prospectus
This
prospectus is part of a registration statement that we filed with the Securities
and Exchange Commission using a “shelf” registration process. Under
the shelf process, we may sell any combination of the securities described in
this prospectus in one or more offerings up to a total dollar amount of
$500,000,000. This prospectus provides you with a general description
of the securities we may offer. Each time we sell securities, we will
provide a prospectus supplement that will contain specific information about the
terms of that offering. The prospectus supplement may also add,
update or change information contained in this prospectus. You should
carefully read this prospectus, any applicable prospectus supplement, together
with additional information described under the heading “Where you can find more
information” before you invest in any of these securities.
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You
should rely only on the information contained or incorporated by reference in
this prospectus and any prospectus supplement. We have not authorized any
dealer, salesperson or other person to provide you with additional or different
information. This prospectus and any prospectus supplement are not an offer to
sell or the solicitation of an offer to buy any securities other than the
securities to which they relate and are not an offer to sell or the solicitation
of an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make an offer or solicitation in that jurisdiction. You should not
assume that the information in this prospectus or any prospectus supplement or
in any document incorporated by reference in this prospectus or any prospectus
supplement is accurate as of any date other than the date of the document
containing the information.
You
should read carefully the entire prospectus, as well as the documents
incorporated by reference in the prospectus and the applicable prospectus
supplement, before making an investment decision.
Unless
the context requires otherwise or unless otherwise noted, all references in this
prospectus or any accompanying prospectus supplement to “Swift Energy, “we,” or
“our” are to Swift Energy Company and its subsidiaries.
Some of
the information included in this prospectus and the documents we have
incorporated by reference contain forward-looking statements. Forward-looking
statements reflect our current views with respect to future events and may be
identified by terms such as “believe,” “expect,” “may,” “intend,” “will,”
“project,” “budget,” “should” or “anticipate” or other similar words. These
statements discuss “forward-looking” information and may include, among others,
statements about anticipated capital expenditures and budgets; sources of
capital; future cash flows and borrowings; pursuit of potential future
acquisition or drilling opportunities; future production volumes; oil and
natural gas reserves; and sources of funding for exploration and development or
other uses.
Although
we believe the expectations and forecasts reflected in these and other
forward-looking statements are reasonable, we can give no assurance they will
prove to have been correct. They can be affected by inaccurate assumptions or by
known or unknown risks and uncertainties. Factors that could cause actual
results to differ materially from expected results are described under “Risk
factors” and include:
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The
length and severity of the current credit
crisis
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volatility
in oil and natural gas prices and fluctuation of prices
received;
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domestic
and worldwide economic conditions;
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disruption
of operations and damages due to hurricanes or tropical
storms;
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demand
or market available for our oil and natural gas
production;
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production
facility constraints;
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uncertainty
of drilling results, reserve estimates and reserve
replacement;
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drilling
and operating risks;
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our
level of indebtedness;
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the
strength and financial results of our
competitors;
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the
availability and cost of capital to fund reserve replacement and other
capital expenditures and costs;
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uncertainties
inherent in estimating quantities of oil and natural gas reserves,
projecting future rates of production and the timing of development
expenditures;
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acquisition
risks;
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unexpected
substantial variances in capital requirements;
and
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environmental
matters.
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There are
other factors that could cause actual results to differ materially from those
anticipated, which are discussed in our periodic filings with the SEC, including
our most recent Form 10-K. See “Risk factors” on page 3.
When
considering these forward-looking statements, you should keep in mind the risk
factors and other cautionary statements in this prospectus and in the documents
we have incorporated by reference. We specifically disclaim all responsibility
to publicly update any information contained in a forward-looking statement or
any forward-looking statement in its entirety and therefore disclaim any
resulting liability for potentially related damages.
All
forward-looking statements attributable to us are expressly qualified in their
entirety by this cautionary statement.
We are
subject to the informational requirements of the Securities Exchange Act of
1934, which requires us to file annual, quarterly and special reports, proxy
statements and other information with the SEC. You may read and copy any
document that we file at the Public Reference Room of the SEC at 100 F Street,
N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 for
further information on the operation of its public reference room and its copy
charges. You may view our SEC filings electronically at the SEC’s Internet site
at http://www.sec.gov, or at our own website at
http://www.swiftenergy.com.
This
prospectus constitutes part of a registration statement on Form S-3 filed
with the SEC under the Securities Act of 1933. It omits some of the information
contained in the Registration Statement, and reference is made to the
Registration Statement for further information with respect to us and the
securities we are offering. Any statement contained in this prospectus
concerning the provisions of any document filed as an exhibit to the
Registration Statement or otherwise filed with the SEC is not necessarily
complete, and in each instance reference is made to the copy of the filed
document.
The SEC
allows us to “incorporate by reference” the information we file with them, which
means that we can disclose important information to you by referring you to
those documents. Any information referred to in this way is considered part of
this prospectus from the date we file that document. Any reports filed by us
with the SEC after the date of this prospectus and before the date that the
offering of the securities by means of this prospectus and any supplement
thereto is terminated will automatically update and, where applicable, supersede
any information contained in this prospectus or incorporated by reference in
this prospectus. We incorporate by reference (excluding any information
furnished pursuant to Items 2.02 or 7.01 of any report on Form 8-K)
the documents listed below and any future filings made with the SEC under
Sections 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934
until we sell all the securities covered by this prospectus:
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Our
annual report on Form 10-K for the year ended December 31, 2008,
filed February 27, 2009;
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Our
quarterly report on Form 10-Q for the quarter ended March 31, 2009, filed
May 7, 2009; and
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Our
current reports on Form 8-K filed April 7, 2009, May 1, 2009, and May
15, 2009.
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You may
request a copy of these filings at no cost, by writing or
telephoning:
Investor
Relations Department
16825
Northchase Drive, Suite 400
Houston,
Texas 77060
(281)
874-2700
You
should rely only on the information incorporated by reference or provided in
this prospectus. We have not authorized anyone else to provide you with any
information. You should not assume that the information provided in this
prospectus or incorporated by reference is accurate as of any date other than
the date on the front cover or the date of the incorporated material, as
applicable.
We are an
independent oil and natural gas company formed in 1979, and we are engaged in
the exploration, development, acquisition and operation of oil and natural gas
properties. Our operations are primarily focused in four core areas
identified as Southeast Louisiana, South Louisiana, Central Louisiana/East
Texas, and South Texas. In addition, we have a strategic growth area
in three parishes in southwest Louisiana and another on acreage in the Four
Corners area of southwest Colorado. South Texas is the oldest of our core areas,
with our operations first established in the AWP field in 1989 and subsequently
expanded with the acquisition of the Sun TSH, Briscoe Ranch, and Las Tiendas
fields during 2007 and with additional interests in the Briscoe Ranch field in
2008. Operations in our Central Louisiana/East Texas area began in mid-1998 when
we acquired the Masters Creek field in Louisiana and the Brookeland field in
Texas, later adding the South Bearhead Creek field in Louisiana in late 2005.
The Southeast Louisiana and South Louisiana areas were established when we
acquired majority interests in producing properties in the Lake Washington field
in early 2001, in the Bay de Chene and Cote Blanche Island fields in December
2004, and in the Bayou Sale, Bayou Penchant, Horseshoe Bayou, and Jeanerette
fields in 2006.
At
December 31, 2008, we had estimated proved reserves from our continuing
operations of 116.4 MMBoe. Our total proved reserves at year-end 2008
were comprised of approximately 43% crude oil, 42% natural gas, and 15% NGLs;
and 53% of our total proved reserves were proved developed. At December 31,
2008, our proved reserves are concentrated with 61% of the total in Louisiana,
38% in Texas, and 1% in other states.
Our
executive offices are located at 16825 Northchase Drive, Suite 400, Houston,
Texas 77060, and our telephone number is (281) 874-2700.
Certain
of our domestic subsidiaries, which we refer to as the “Subsidiary Guarantors”
in this prospectus, may fully and unconditionally guarantee our payment
obligations under any series of debt securities offered by this prospectus.
Financial information concerning our Subsidiary Guarantors and any non-guarantor
subsidiaries will be included in our consolidated financial statements filed as
part of our periodic reports filed pursuant to the Exchange Act to the extent
required by the rules and regulations of the SEC.
An
investment in the securities involves a significant degree of
risk. Before you invest in our securities you should carefully
consider those risk factors included in our most recent Annual Report on Form
10-K, any Quarterly Reports on Form 10-Q and any Current Reports on Form 8-K,
which are incorporated herein by reference, and those risk factors that may be
included in any applicable prospectus supplement, together with all of the other
information included in this prospectus, any prospectus supplement and the
documents we incorporate by reference, in evaluating an investment in our
securities. If any of the risks discussed in the foregoing documents
were to occur, our business, financial condition, results of operations and cash
flows could be materially adversely affected. Also, please read the
cautionary statement in this prospectus under “Forward-looking
statements.”
Unless
otherwise indicated in the applicable prospectus supplement, we intend to use
the net proceeds from the sale of the securities offered by this prospectus and
any prospectus supplement for our general corporate purposes, which may include
repayment of indebtedness, the financing of capital expenditures, future
acquisitions and additions to our working capital.
The
following table sets forth our ratio of earnings to fixed charges:
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Year
Ended December 31,
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Three
months ended March 31,
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2004
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2005
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2006
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2007
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2008
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2009
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Ratio
of earnings to fixed charges
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3.31
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5.59
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8.21
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7.17
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*
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*
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Due
to the $754.3 million non-cash charge incurred in the fourth quarter of
2008, and the $79.3 million non-cash charge incurred in the first quarter
of 2009, both caused by a write-down in the carrying value of oil and gas
properties due to the rapid decline of oil and gas prices during those
periods, 2008 earnings were insufficient to cover fixed charges by $420.8
million, and first quarter 2009 earnings were insufficient to cover fixed
charges by $93.5 million. If the $754.3 million non-cash charge
at year-end 2008 is excluded in calculating earnings, the ratio of
earnings to fixed charges would have been 9.43 for the year ended December
31, 2008. If the $79.3 million non-cash charge is excluded in
calculating earnings, the ratio of earnings to fixed charges for the
quarter ended March 31, 2009, would have still been insufficient to cover
fixed charges by $14.2 million.
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For
purposes of calculating the ratio of earnings to fixed charges, fixed charges
include interest expense, capitalized interest, amortization of debt issuance
costs and discounts, and that portion of non-capitalized rental expense deemed
to be the equivalent of interest. Earnings represents income (loss)
from continuing operations before income taxes and interest expense, net, and
that portion of rental expense deemed to be the equivalent of
interest.
This
section describes the general terms and provisions of the debt securities which
may be offered by us from time to time. The applicable prospectus supplement
will describe the specific terms of the debt securities offered by that
prospectus supplement. Those terms of the debt securities offered by
a prospectus supplement may differ significantly from the terms of the Debt
Securities described in this “Description of Debt Securities.”
We may
issue debt securities either separately or together with, or upon the conversion
of, or in exchange for, other securities. The debt securities are to be either
senior obligations of ours issued in one or more series and referred to herein
as the “Senior Debt Securities,” or subordinated obligations of ours issued in
one or more series and referred to herein as the “Subordinated Debt Securities.”
The Senior Debt Securities and the Subordinated Debt Securities are collectively
referred to as the “Debt Securities.” The Debt Securities will be general
obligations of the Company. Each series of Debt Securities will be
issued on terms specified in an agreement, or “Indenture,” between Swift and an
independent third party, usually a bank or trust company, known as a “Trustee,”
who will be legally obligated to carry out the terms of the Indenture. The
name(s) of the Trustee(s) will be set forth in the applicable prospectus
supplement. We may issue all the Debt Securities under the same Indenture, as
one or as separate series, as specified in the applicable prospectus
supplement(s).
This
summary of certain terms and provisions of the Debt Securities and Indentures is
not complete. If we refer to particular provisions of an Indenture, the
provisions, including definitions of certain terms, are incorporated by
reference as a part of this summary. The Indentures are or will be filed as an
exhibit to the registration statement of which this prospectus is a part, or as
exhibits to documents filed under the Securities Exchange Act of 1934, which are
incorporated by reference into this prospectus. The Indentures are subject to
and governed by the Trust Indenture Act of 1939, as amended. You should refer to
the applicable Indenture for the provisions that may be important to
you.
General
The
Indentures will not limit the amount of Debt Securities that we may issue. We
may issue Debt Securities up to an aggregate principal amount as we may
authorize from time to time. The Company
may
establish, without the approval of existing holders of Debt Securities, and the
applicable prospectus supplement will describe, the terms of any Debt Securities
being offered, including:
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the
title and aggregate principal
amount;
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the
date(s) when principal is payable;
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the
interest rate, if any, and the method for calculating the interest
rate;
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the
interest payment dates and the record dates for the interest
payments;
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the
places where the principal and interest will be
payable;
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any
mandatory or optional redemption or repurchase terms or prepayment,
conversion, sinking fund or exchangeability or convertibility
provisions;
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whether
such Debt Securities will be Senior Debt Securities or Subordinated Debt
Securities and, if Subordinated Debt Securities, the subordination
provisions and the applicable definition of “Senior
Indebtedness”;
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additional
provisions, if any, relating to the defeasance and covenant defeasance of
the Debt Securities;
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if
other than denominations of $1,000 or multiples of $1,000, the
denominations the Debt Securities will be issued
in;
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whether
the Debt Securities will be issued in the form of Global Securities, as
defined below, or certificates;
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whether
the Debt Securities will be issuable in registered form, referred to as
“Registered Securities,” or in bearer form, referred to as “Bearer
Securities” or both and, if Bearer Securities are issuable, any
restrictions applicable to the exchange of one form for another and the
offer, sale and delivery of Bearer
Securities;
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any
applicable material federal tax
consequences;
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the
dates on which premiums, if any, will be
payable;
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our
right, if any, to defer payment of interest and the maximum length of such
deferral period;
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any
paying agents, transfer agents, registrars or
trustees;
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any
listing on a securities exchange;
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if
convertible into common stock or preferred stock, the terms on which such
Debt Securities are convertible;
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the
terms of any guarantee of the Debt
Securities;
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the
subordination terms, if any;
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the
terms, if any, of the transfer, mortgage, pledge, or assignment as
security for any series of Debt Securities of any properties, assets,
proceeds, securities or other collateral, including whether certain
provisions of the Trust Indenture Act are applicable, and any
corresponding changes to provisions of the Indenture as currently in
effect;
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the
initial offering price; and
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other
specific terms, including covenants and any additions or changes to the
events of default provided for with respect to the Debt
Securities.
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The terms
of the Debt Securities of any series may differ and, without the consent of the
holders of the Debt Securities of any series, we may reopen a previous series of
Debt Securities and issue additional Debt Securities of such series or establish
additional terms of such series, unless otherwise indicated in the applicable
prospectus supplement or supplemental indenture.
Ranking
of Debt Securities
The
Senior Debt Securities will be our senior unsecured obligations and will rank
equal in right of payment with all of our existing and future senior unsecured
indebtedness. The Senior Debt Securities may be guaranteed on a senior unsecured
basis by all of our material existing and future domestic subsidiaries. The
guarantees will rank equal in right of payment with all existing and future
senior unsecured indebtedness of any subsidiary guarantors. The notes and the
guarantees will be effectively subordinated to any existing or future secured
indebtedness to the extent of the value of the collateral securing such
indebtedness.
The
Subordinated Debt Securities will be obligations of ours and will be
subordinated in right of payment to all existing and future Senior Indebtedness.
The prospectus supplement will define senior indebtedness and will set forth the
approximate amount of such senior indebtedness outstanding as of a recent
date. The prospectus supplement will also describe the subordination
provisions of the Subordinated Debt Securities.
Covenants
Under the
Indentures, we will be required to:
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pay
the principal, interest and any premium on the Debt Securities when
due;
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maintain
a place of payment;
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deliver
a report to the Trustee at the end of each fiscal year reviewing our
obligations under the Indentures;
and
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deposit
sufficient funds with any paying agent on or before the due date for any
principal, interest or any premium.
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Any
additional covenants will be described in the applicable prospectus
supplement.
Registration,
Transfer, Payment and Paying Agent
Unless
otherwise indicated in a prospectus supplement, each series of Debt Securities
will be issued in registered form only, without coupons. The Indentures,
however, provide that we may also issue Debt Securities in bearer form only, or
in both registered and bearer form. Bearer Securities shall not be offered,
sold, resold or delivered in connection with their original issuance in the
United States or to any United States person other than offices located outside
the United States of certain United States financial institutions. “United
States person” means any citizen or resident of the United States, any
corporation, partnership or other entity created or organized in or under the
laws of the United States, any estate the income of which is subject to United
States federal income taxation regardless of its source, or any trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States fiduciaries who have the authority to
control all substantial decisions of the trust. “United States” means the United
States of America (including the states thereof and the District of Columbia),
its territories, its possessions and other areas subject to its
jurisdiction. Purchasers of Bearer Securities will be subject to
certification procedures and may be affected by certain limitations under United
States tax laws. Such procedures and limitations will be described in the
prospectus supplement relating to the offering of the Bearer
Securities.
Unless
otherwise indicated in a prospectus supplement, Registered Securities will be
issued in denominations of $1,000 or any integral multiple thereof, and Bearer
Securities will be issued in denominations of $5,000.
Unless
otherwise indicated in a prospectus supplement, the principal, premium, if any,
and interest, if any, of or on the Debt Securities will be payable, and Debt
Securities may be surrendered for registration of transfer or exchange, at an
office or agency to be maintained by us in the Borough of Manhattan, The City of
New York, provided that payments of interest with respect to any Registered
Security may be made at our option by check mailed to the address of the person
entitled to payment or by transfer to an account maintained by the payee with a
bank located in the United States. No service charge shall be made for any
registration of transfer or exchange of Debt Securities, but we may require
payment of a sum sufficient to cover any tax or other governmental charge and
any other expenses that may be imposed in connection with the exchange or
transfer.
Unless
otherwise indicated in a prospectus supplement, payment of principal of,
premium, if any, and interest, if any, on Bearer Securities will be made,
subject to any applicable laws and regulations, at such office or agency outside
the United States as specified in the prospectus supplement and as we may
designate from time to time. Unless otherwise indicated in a prospectus
supplement, payment of interest due on Bearer Securities on any interest payment
date will be made only against surrender of the coupon relating to such interest
payment date. Unless otherwise indicated in a prospectus supplement, no payment
of principal, premium or interest with respect to any Bearer Security will be
made at any office or agency in the United States or by check mailed to any
address in the United States or by transfer to an account maintained with a bank
located in the United States; except that if amounts owing with respect to any
Bearer Securities shall be payable in U.S. dollars, payment may be made at the
Corporate Trust Office of the applicable Trustee or at any office or agency
designated by us in the Borough of Manhattan, The City of New York, if (but only
if) payment of the full amount of such principal, premium or interest at all
offices outside of the United States maintained for such purpose by us is
illegal or effectively precluded by exchange controls or similar
restrictions.
Unless
otherwise indicated in the applicable prospectus supplement, we will not be
required to:
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issue,
register the transfer of or exchange Debt Securities of any series during
a period beginning at the opening of business 15 days before any selection
of Debt Securities of that series of like tenor to be redeemed and ending
at the close of business on the day of that
selection;
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register
the transfer of or exchange any Registered Security, or portion thereof,
called for redemption, except the unredeemed portion of any Registered
Security being redeemed in part;
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exchange
any Bearer Security called for redemption, except to exchange such Bearer
Security for a Registered Security of that series and like tenor that is
simultaneously surrendered for redemption;
or
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issue,
register the transfer of or exchange any Debt Security which has been
surrendered for repayment at the option of the holder, except the portion,
if any, of the Debt Security not to be so
repaid.
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Original
Issue Discount Securities
Debt
Securities may be issued as “Original Issue Discount Securities” to be sold at a
discount below their principal amount. Original Issue Discount Securities may
include “zero coupon” securities that do not pay any cash interest for the
entire term of the securities. In the event of an acceleration of the maturity
of any Original Issue Discount Security, the amount payable to the holder
thereof upon such acceleration will be determined in the manner described in the
applicable prospectus supplement. Conditions pursuant to which payment of the
principal of the Subordinated Debt Securities may be accelerated will be set
forth in the applicable prospectus supplement. Material federal income tax and
other considerations applicable to Original Issue Discount Securities will be
described in the applicable prospectus supplement.
Non
U.S. Currency
If the
purchase price of any Debt Securities is payable in a currency other than U.S.
dollars or if principal of, or premium, if any, or interest, if any, on any of
the Debt Securities is payable in any currency other
than U.S.
dollars, the specific terms with respect to such Debt Securities and such
foreign currency will be specified in the applicable prospectus
supplement.
Global
Securities
The Debt
Securities of a series may be issued in whole or in part in the form of one or
more global securities that will be deposited with, or on behalf of, a
“Depositary” identified in the prospectus supplement relating to such series.
Global Debt Securities may be issued in either registered or bearer form and in
either temporary or permanent form. Unless and until it is exchanged in whole or
in part for individual certificates evidencing Debt Securities, a Global Debt
Security may not be transferred except as a whole:
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by
the Depositary to a nominee of such
Depositary;
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by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary; or
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by
such Depositary or any such nominee to a successor of such Depositary or a
nominee of such successor.
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The
specific terms of the depositary arrangement with respect to a series of Global
Debt Securities and certain limitations and restrictions relating to a series of
Global Bearer Securities will be described in the applicable prospectus
supplement.
Redemption
and Repurchase
The Debt
Securities may be redeemable, in whole or in part, at our option, may be subject
to mandatory redemption pursuant to a sinking fund or otherwise, or may be
subject to repurchase by Swift at the option of the holders, in each case upon
the terms, at the times and at the prices set forth in the applicable prospectus
supplement.
Conversion
and Exchange
The
terms, if any, on which Debt Securities of any series are convertible into or
exchangeable for common stock, preferred stock, or other Debt Securities will be
set forth in the applicable prospectus supplement. Such terms will include
provisions as to whether conversion or exchange is mandatory, at the option of
the holder, or at our option, the conversion price and the conversion period,
and may include provisions pursuant to which the number of shares of our common
stock or other securities to be received by the holders of such series of Debt
Securities would be subject to adjustment..
Consolidation,
Merger and Sale of Assets
Each
Indenture generally will permit a consolidation or merger between us and another
corporation, if the surviving corporation meets certain limitations and
conditions. Subject to those conditions, each Indenture may also permit the sale
by us of all or substantially all of our property and assets. If this happens,
the remaining or acquiring corporation shall assume all of our responsibilities
and liabilities under the Indentures including the payment of all amounts due on
the Debt Securities and performance of the covenants in the
Indentures.
We are
only permitted to consolidate or merge with or into any other corporation or
sell all or substantially all of our assets according to the terms and
conditions of the Indentures, as indicated in the applicable prospectus
supplement. The remaining or acquiring corporation will be substituted for us in
the Indentures with the same effect as if it had been an original party to the
Indenture. Thereafter, the successor corporation may exercise our rights and
powers under any Indenture, in our name or in its own name. Any act or
proceeding required or permitted to be done by our board of directors or any of
our officers may be done by the board or officers of the successor
corporation.
Events
of Default
Unless
otherwise specified in the applicable prospectus supplement, an Event of
Default, as defined in the Indentures and applicable to Debt Securities issued
under such Indentures, typically will occur with respect to the Debt Securities
of any series under the Indenture upon:
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default
for a period to be specified in the applicable prospectus supplement in
payment of any interest with respect to any Debt Security of such
series;
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default
in payment of principal or any premium with respect to any Debt Security
of such series when due upon maturity, redemption, repurchase at the
option of the holder or otherwise;
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default
in deposit of any sinking fund payment when due with respect to any Debt
Security of such series;
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default
by us in the performance, or breach, of any other covenant or warranty in
such Indenture, which shall not have been remedied for a period to be
specified in the applicable prospectus supplement after notice to us by
the applicable Trustee or the holders of not less than a fixed percentage
in aggregate principal amount of the Debt Securities of all series issued
under the applicable Indenture;
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certain
events of bankruptcy, insolvency or reorganization of Swift;
or
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any
other Event of Default that may be set forth in the applicable prospectus
supplement, including an Event of Default based on other debt being
accelerated, known as a
“cross-acceleration.”
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No Event
of Default with respect to any particular series of Debt Securities necessarily
constitutes an Event of Default with respect to any other series of Debt
Securities. If the Trustee considers it in the interest of the holders to do so,
the Trustee under an Indenture may withhold notice of the occurrence of a
default with respect to the Debt Securities to the holders of any series
outstanding, except a default in payment of principal, premium, if any,
interest, if any.
Each
Indenture will provide that if an Event of Default with respect to any series of
Debt Securities issued thereunder shall have occurred and be continuing, either
the relevant Trustee or the holders of at least a fixed percentage in principal
amount of the Debt Securities of such series then outstanding may declare the
principal amount of all the Debt Securities of such series to be due and payable
immediately. In the case of Original Issue Discount Securities, the
Trustee may declare as due and payable such lesser amount as may be specified in
the applicable prospectus supplement. However, upon certain
conditions, such declaration and its consequences may be rescinded and annulled
by the holders of at least a fixed percentage in principal amount of the Debt
Securities of all series issued under the applicable Indenture.
The
applicable prospectus supplement will provide the terms pursuant to which an
Event of Default shall result in acceleration of the payment of principal of
Subordinated Debt Securities.
In the
case of a default in the payment of principal of, or premium, if any, or
interest, if any, on any Subordinated Debt Securities of any series, the
applicable Trustee, subject to certain limitations and conditions, may institute
a judicial proceeding for the collection thereof.
No holder
of any of the Debt Securities of any series will have any right to institute any
proceeding with respect to the Indenture or any remedy thereunder, unless the
holders of at least a fixed percentage in principal amount of the outstanding
Debt Securities of such series:
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have
made written request to the Trustee to institute such proceeding as
Trustee, and offered reasonable indemnity to the
Trustee,
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the
Trustee has failed to institute such proceeding within the time period
specified in the applicable prospectus supplement after receipt of such
notice, and
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the
Trustee has not within such period received directions inconsistent with
such written request by holders of a majority in principal amount of the
outstanding Debt Securities of such series. Such limitations do not apply,
however, to a suit instituted by a holder of a Debt Security for the
enforcement of the payment of the principal of, premium, if any, or any
accrued and unpaid interest on, the Debt Security on or after the
respective due dates expressed in the Debt
Security.
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During
the existence of an Event of Default under an Indenture, the Trustee is required
to exercise such rights and powers vested in it under the Indenture and use the
same degree of care and skill in its exercise thereof as a prudent person would
exercise under the circumstances in the conduct of such person’s own affairs.
Subject to the provisions of the Indenture relating to the duties of the
Trustee, if an Event of Default shall occur and be continuing, the Trustee is
under no obligation to exercise any of its rights or powers under the Indenture
at the request or direction of any of the holders, unless such holders shall
have offered to the Trustee reasonable security or indemnity. Subject to certain
provisions concerning the rights of the Trustee, the holders of at least a fixed
percentage in principal amount of the outstanding Debt Securities of any series
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any power conferred on
the Trustee with respect to such series.
The
Indentures provide that the Trustee will, within the time period specified in
the applicable prospectus supplement after the occurrence of any default, give
to the holders of the Debt Securities of such series notice of such default
known to it, unless such default shall have been cured or waived; provided that
the Trustee shall be protected in withholding such notice if it determines in
good faith that the withholding of such notice is in the interest of such
holders, except in the case of a default in payment of principal of or premium,
if any, on any Debt Security of such series when due or in the case of any
default in the payment of any interest on the Debt Securities of such
series.
Swift is
required to furnish to the Trustee annually a statement as to compliance with
all conditions and covenants under the Indentures.
Modification
and Waivers
From time
to time, when authorized by resolutions of our board of directors and by the
Trustee, without the consent of the holders of Debt Securities of any series, we
may amend, waive or supplement the Indentures and the Debt Securities of such
series for certain specified purposes, including, among other
things:
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to
cure ambiguities, defects or
inconsistencies;
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to
provide for the assumption of our obligations to holders of the Debt
Securities of such series in the case of a merger or
consolidation;
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to
add to our Events of Default or our covenants or to make any change that
would provide any additional rights or benefits to the holders of the Debt
Securities of such series;
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to
add or change any provisions of such Indenture to facilitate the issuance
of Bearer Securities;
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to
establish the form or terms of Debt Securities of any series and any
related coupons;
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to
add guarantors with respect to the Debt Securities of such
series;
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to
secure the Debt Securities of such
series;
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to
maintain the qualification of the Indenture under the Trust Indenture Act;
or
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to
make any change that does not adversely affect the rights of any
holder.
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Other
amendments and modifications of the Indentures or the Debt Securities issued
thereunder may be made by Swift and the Trustee with the consent of the holders
of not less than a fixed percentage of the aggregate principal amount of the
outstanding Debt Securities of each series affected, with each series voting as
a separate class; provided that, without the consent of the holder of each
outstanding Debt Security affected, no such modification or amendment
may:
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reduce
the principal amount of, or extend the fixed maturity of the Debt
Securities, or alter or waive any redemption, repurchase or sinking fund
provisions of the Debt Securities;
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reduce
the amount of principal of any Original Issue Discount Securities that
would be due and payable upon an acceleration of the maturity
thereof;
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change
the currency in which any Debt Securities or any premium or the accrued
interest thereon is payable;
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reduce
the percentage in principal amount outstanding of Debt Securities of any
series which must consent to an amendment, supplement or waiver or consent
to take any action under the Indenture or the Debt Securities of such
series;
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impair
the right to institute suit for the enforcement of any payment on or with
respect to the Debt Securities;
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waive
a default in payment with respect to the Debt Securities or any
guarantee;
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reduce
the rate or extend the time for payment of interest on the Debt
Securities;
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adversely
affect the ranking of the Debt Securities of any
series;
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release
any guarantor from any of its obligations under its guarantee or the
Indenture, except in compliance with the terms of the Indenture;
or
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solely
in the case of a series of Subordinated Debt Securities, modify any of the
applicable subordination provisions or the applicable definition of Senior
Indebtedness in a manner adverse to any
holders.
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The
holders of a fixed percentage in aggregate principal amount of the outstanding
Debt Securities of any series may waive compliance by us with certain
restrictive provisions of the relevant Indenture, including any set forth in the
applicable prospectus supplement. The holders of a fixed percentage in aggregate
principal amount of the outstanding Debt Securities of any series may, on behalf
of the holders of that series, waive any past default under the applicable
Indenture with respect to that series and its consequences, except a default in
the payment of the principal of, or premium, if any, or interest, if any, on any
Debt Securities of such series, or in respect of a covenant or provision which
cannot be modified or amended without the consent of a larger fixed percentage
of holders or by the holder of each outstanding Debt Securities of the series
affected.
Outstanding
Debt Securities
In
determining whether the holders of the requisite principal amount of outstanding
Debt Securities have given any authorization, demand, direction, notice, consent
or waiver under the relevant Indenture, the amount of outstanding Debt
Securities will be calculated based on the following:
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the
portion of the principal amount of an Original Issue Discount Security
that shall be deemed to be outstanding for such purposes shall be that
portion of the principal amount thereof that could be declared to be due
and payable upon a declaration of acceleration pursuant to the terms of
such Original Issue Discount Security as of the date of such
determination;
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the
principal amount of a Debt Security denominated in a currency other than
U.S. dollars shall be the U.S. dollar equivalent, determined on the date
of original issue of such Debt Security, of the principal amount of such
Debt Security; and
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any
Debt Security owned by us or any obligor on such Debt Security or any
affiliate of us or such other obligor shall be deemed not to be
outstanding.
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Discharge,
Termination and Covenant Termination
When we
establish a series of Debt Securities, we may provide that such series is
subject to the termination and discharge provisions of the applicable Indenture.
If those provisions are made applicable, we may elect either:
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to
terminate and be discharged from all of our obligations with respect to
those Debt Securities subject to some limitations;
or
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to
be released from our obligations to comply with specified covenants
relating to those Debt Securities, as described in the applicable
prospectus supplement.
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To effect
that termination or covenant termination, we must irrevocably deposit in trust
with the relevant Trustee an amount which, through the payment of principal and
interest in accordance with their terms, will provide money sufficient to make
payments on those Debt Securities and any mandatory sinking fund or similar
payments on those Debt Securities. This deposit may be made in any
combination of funds or government obligations. On such a
termination, we will not be released from certain of our obligations that will
be specified in the applicable prospectus supplement.
To
establish such a trust we must deliver to the relevant Trustee an opinion of
counsel to the effect that the holders of those Debt Securities
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will
not recognize income, gain or loss for U.S. federal income tax purposes as
a result of the termination or covenant termination;
and
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will
be subject to U.S. federal income tax on the same amounts, in the same
manner and at the same times as would have been the case if the
termination or covenant termination had not
occurred.
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If we
effect covenant termination with respect to any Debt Securities, the amount of
deposit with the relevant Trustee must be sufficient to pay amounts due on the
Debt Securities at the time of their stated maturity. However, those Debt
Securities may become due and payable prior to their stated maturity if there is
an Event of Default with respect to a covenant from which we have not been
released. In that event, the amount on deposit may not be sufficient to pay all
amounts due on the Debt Securities at the time of the acceleration.
The
applicable prospectus supplement may further describe the provisions, if any,
permitting termination or covenant termination, including any modifications to
the provisions described above.
Governing
Law
The
Indentures and the Debt Securities will be governed by, and construed in
accordance with, the laws of the State of New York.
Regarding
the Trustees
The Trust
Indenture Act contains limitations on the rights of a trustee, should it become
a creditor of ours, to obtain payment of claims in certain cases or to realize
on certain property received by it in respect of any such claims, as security or
otherwise. Each Trustee is permitted to engage in other transactions with us
from time to time, provided that if such Trustee acquires any conflicting
interest, it must eliminate such conflict upon the occurrence of an Event of
Default under the relevant Indenture, or else resign.
General
As of the
date of this prospectus, we are authorized to issue up to 90,000,000 shares
of stock, including up to 85,000,000 shares of common stock and up to
5,000,000 shares of preferred stock. As of December 31, 2008, we had
30,923,267 shares of common stock and no shares of preferred stock
outstanding.
The
following is a summary of the key terms and provisions of our equity securities.
You should refer to the applicable provisions of our articles of incorporation,
bylaws, the Texas Business Corporation Act and the documents we have
incorporated by reference for a complete statement of the terms and rights of
our capital stock.
Common
Stock
Voting Rights. Each holder of
common stock is entitled to one vote per share. Subject to the rights, if any,
of the holders of any series of preferred stock pursuant to applicable law or
the provision of the certificate of designation creating that series, all voting
rights are vested in the holders of shares of common stock. Holders of shares of
common stock have noncumulative voting rights, which means that the holders of
more than 50% of the shares voting for the election of directors can elect 100%
of the directors, and the holders of the remaining shares voting for the
election of directors will not be able to elect any directors.
Dividends. Dividends may be
paid to the holders of common stock when, as and if declared by the board of
directors out of funds legally available for their payment, subject to the
rights of holders of any preferred stock. Swift has never declared a cash
dividend and intends to continue its policy of using retained earnings for
expansion of its business.
Rights upon Liquidation. In
the event of our voluntary or involuntary liquidation, dissolution or winding
up, the holders of common stock will be entitled to share equally, in proportion
to the number of shares of common stock held by them, in any of our assets
available for distribution after the payment in full of all debts and
distributions and after the holders of all series of outstanding preferred
stock, if any, have received their liquidation preferences in full.
Non-Assessable. All
outstanding shares of common stock are fully paid and non-assessable. Any
additional common stock we offer and issue under this Prospectus will also be
fully paid and non-assessable.
No Preemptive Rights. Holders
of common stock are not entitled to preemptive purchase rights in future
offerings of our common stock.
Listing. Our outstanding
shares of common stock are listed on the New York Stock Exchange under the
symbol “SFY.” Any additional common stock we issue will also be listed on the
NYSE.
Preferred
Stock
Our board
of directors can, without approval of our shareholders, issue one or more series
of preferred stock and determine the number of shares of each series and the
rights, preferences and limitations of each series. The following description of
the terms of the preferred stock sets forth certain general terms and provisions
of our authorized preferred stock. If we offer preferred stock, a description
will be filed with the SEC and the specific designations and rights will be
described in a prospectus supplement, including the following
terms:
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the
series, the number of shares offered and the liquidation value of the
preferred stock;
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the
price at which the preferred stock will be
issued;
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the
dividend rate, the dates on which the dividends will be payable and other
terms relating to the payment of dividends on the preferred
stock;
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the
liquidation preference of the preferred
stock;
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the
voting rights of the preferred
stock;
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whether
the preferred stock is redeemable or subject to a sinking fund, and the
terms of any such redemption or sinking
fund;
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whether
the preferred stock is convertible or exchangeable for any other
securities, and the terms of any such
conversion; and
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any
additional rights, preferences, qualifications, limitations and
restrictions of the preferred
stock.
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The
description of the terms of the preferred stock to be set forth in an applicable
prospectus supplement will not be complete and will be subject to and qualified
in its entirety by reference to the certificate of designation relating to the
applicable series of preferred stock. The registration statement of which this
prospectus forms a part will include the certificate of designation as an
exhibit or incorporate it by reference.
Undesignated
preferred stock may enable our board of directors to render more difficult or to
discourage an attempt to obtain control of us by means of a tender offer, proxy
contest, merger or otherwise, and to thereby protect the continuity of our
management. The issuance of shares of preferred stock may adversely affect the
rights of the holders of our common stock. For example, any preferred stock
issued may rank prior to our common stock as to dividend rights, liquidation
preference or both, may have full or limited voting rights and may be
convertible into shares of common stock. As a result, the issuance of shares of
preferred stock may discourage bids for our common stock or may otherwise
adversely affect the market price of our common stock or any existing preferred
stock.
Any
preferred stock will, when issued, be fully paid and
non-assessable.
Anti-takeover
Provisions
Certain
provisions in our articles of incorporation, bylaws and our shareholders’ rights
plan may encourage persons considering unsolicited tender offers or other
unilateral takeover proposals to negotiate with our board of directors rather
than pursue non-negotiated takeover attempts.
Our Classified Board of
Directors. Our bylaws provide that our board of directors is divided into
three classes as nearly equal in number as possible. The directors of each class
are elected for three-year terms, and the terms of the three classes are
staggered so that directors from a single class are elected at each annual
meeting of stockholders. A staggered board makes it more difficult for
shareholders to change the majority of the directors and instead promotes
continuity of existing management.
Our Ability to Issue Preferred
Stock. As discussed above, our board of directors can set the voting
rights, redemption rights, conversion rights and other rights relating to
authorized but unissued shares of preferred stock and could issue that stock in
either private or public transactions. Preferred stock could be issued for the
purpose of preventing a merger, tender offer or other takeover attempt which the
board of directors opposes.
Our Rights Plan. Our board of
directors has adopted a stockholders’ rights plan. The rights attach to all
common stock certificates representing outstanding shares. One right is issued
for each share of common stock outstanding. Each right entitles the registered
holder, under the circumstances described below, to purchase from us one
one-thousandth of a share of our Series A Junior Participating Preferred
Stock, a “Series A” share, at a price of $250.00 per one
one-thousandth of a Series A share, subject to adjustment. The dividend and
liquidation rights and the non-redemption feature of the Series A shares
are designed so that the value of one one-thousandth of a Series A share
purchasable upon exercise of each right will approximate the value of one share
of common stock. The following is a summary of the terms of the rights plan. You
should refer to the applicable provisions of the rights plan which we have
incorporated by reference as an exhibit to the registration statement of which
this prospectus is a part.
The
rights will separate from the common stock and right certificates will be
distributed to the holders of common stock as of the earlier of:
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•
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10 business
days following a public announcement that a person or group of affiliated
persons has acquired beneficial ownership of 15% or more of our
outstanding voting shares, or
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•
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10 business
days following the commencement or announcement of an intention to
commence a tender offer or exchange offer which would result in a person
or group beneficially owning 15% or more of our outstanding voting
shares.
|
The
rights are not exercisable until rights certificates are distributed. The rights
will expire on December 20, 2016, unless that date is extended or the rights are
earlier redeemed or exchanged.
If a
person or group (with certain exceptions for investment advisers) acquires 15%
or more of our voting shares, each right then outstanding, other than rights
beneficially owned by such person or group, becomes a right to buy that number
of shares of common stock or other securities or assets having a market value of
two times the exercise price of the right. The rights belonging to the
acquiring person or group become null and void.
If Swift
is acquired in a merger or other business combination, or 50% of its
consolidated assets or assets producing more than 50% of its earning power or
cash flow are sold, each holder of a right will have the right to receive that
number of shares of common stock of the acquiring company which at the time of
such transaction has a market value of two times the purchase price of the
right.
At any
time after a person or group acquires beneficial ownership of 15% or more of our
outstanding voting shares and before the earlier of the two events described in
the prior paragraph or acquisition by a person or group of beneficial ownership
of 50% or more of our outstanding voting shares, our board of directors may, at
its option, exchange the rights, other than those owned by such person or group,
in whole or in part, at an exchange ratio of one share of common stock or a
fractional share of Series A stock or other preferred stock equivalent in
value thereto, per right.
The
Series A shares issuable upon exercise of the rights will be non-redeemable
and rank junior to all other series of our preferred stock. Each whole
Series A share will be entitled to receive a quarterly preferential
dividend in an amount per share equal to the greater of $1.00 in cash, or in the
aggregate, 1,000 times the dividend declared on the common stock, subject
to adjustment. In the event of liquidation, the holders of Series A share
may receive a preferential liquidation payment equal to the greater of
$1,000 per share, or in the aggregate, 1,000 times the payment made on
the shares of common stock. In the event of any merger, consolidation or other
transaction in which the shares of common stock are exchanged for or changed
into other stock or securities, cash or other property, each whole Series A
share will be entitled to receive 1,000 times the amount received per share
of common stock. Each whole Series A share will be entitled to
1,000 votes on all matters submitted to a vote of our stockholders and
Series A shares will generally vote together as one class with the common
stock and any other capital stock on all matters submitted to a vote of our
stockholders.
Prior to
the earlier of the date it is determined that right certificates are to be
distributed or the expiration date of the rights, our board of directors may
redeem all, but not less than all, of the then outstanding rights at a price of
$0.01 per right. Our board of directors in its sole discretion may
establish the effective date and other terms and conditions of the redemption.
Upon redemption, the ability to exercise the rights will terminate and the
holders of rights will only be entitled to receive the redemption
price.
As long
as the rights are redeemable, we may amend the rights agreement in any manner
except to change the redemption price. After the rights are no longer
redeemable, we may, except with respect to the redemption price, amend the
rights agreement in any manner that does not adversely affect the interests of
holders of the rights.
Business Combinations Under Texas
Law. Swift is a Texas corporation subject to Part Thirteen of the Texas
Business Corporation Act known as the “Business Combination Law.” In general,
the Business Combination Law prevents an affiliated shareholder, or its
affiliates or associates, from entering into a business combination with an
issuing public corporation during the three-year period immediately following
the date on which the affiliated shareholder became an affiliated shareholder,
unless:
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•
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before the date such person became an affiliated shareholder, the board of directors of the issuing public corporation approves the business combination or the acquisition of shares that caused the affiliated shareholder to become an affiliated shareholder; or |
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•
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not
less than six months after the date such person became an affiliated
shareholder, the business combination is approved by the affirmative vote
of holders of at least two-thirds of the issuing public corporation’s
outstanding voting shares not beneficially owned by the affiliated
shareholder, or its affiliates or
associates.
|
An
affiliated shareholder is a person that is or was within the preceding
three-year period the beneficial owner of 20% or more of a corporation’s
outstanding voting shares. An issuing public corporation includes most publicly
held Texas corporations, including Swift. The term business combination
includes:
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•
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mergers,
share exchanges or conversions involving the affiliated
shareholder;
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•
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dispositions
of assets involving the affiliated shareholder having an aggregate value
of 10% or more of the market value of the assets or of the outstanding
common stock or representing 10% or more of the earning power or net
income of the corporation;
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•
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issuances
or transfers of securities by the corporation to the affiliated
shareholder other than on a pro rata
basis;
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•
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plans
or agreements relating to a liquidation or dissolution of the corporation
involving an affiliated
shareholder;
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•
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reclassifications,
recapitalizations, distributions or other transactions that would have the
effect of increasing the affiliated shareholder’s percentage ownership of
the corporation; and
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•
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the
receipt of tax, guarantee, loan or other financial benefits by an
affiliated shareholder other than proportionately as a shareholder of the
corporation.
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We may
offer preferred stock represented by depositary shares and issue depositary
receipts evidencing the depositary shares. Each depositary share will represent
a fraction of a share of preferred stock. Shares of preferred stock of each
class or series represented by depositary shares will be deposited under a
separate deposit agreement among us, a bank or trust company acting as the
“Depository” and the holders of the depositary receipts. Subject to the terms of
the deposit agreement, each owner of a depositary receipt will be entitled, in
proportion to the fraction of a share of preferred stock represented by the
depositary shares evidenced by the depositary receipt, to all the rights and
preferences of the preferred stock represented by such depositary shares. Those
rights include any dividend, voting, conversion, redemption and liquidation
rights. Immediately following the issuance and delivery of the preferred stock
to the Depository, we will cause the Depository to issue the depositary receipts
on our behalf.
If
depositary shares are offered, the applicable prospectus supplement will
describe the terms of such depositary shares, the deposit agreement and, if
applicable, the depositary receipts, including the following, where
applicable:
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•
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the
payment of dividends or other cash distributions to the holders of
depositary receipts when such dividends or other cash distributions are
made with respect to the preferred
stock;
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•
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the
voting by a holder of depositary shares of the preferred stock underlying
such depositary shares at any meeting called for such
purpose;
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•
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if
applicable, the redemption of depositary shares upon a redemption by us of
shares of preferred stock held by the
Depository;
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•
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if
applicable, the exchange of depositary shares upon an exchange by us of
shares of preferred stock held by the Depository for debt securities or
common stock;
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•
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if
applicable, the conversion of the shares of preferred stock underlying the
depositary shares into shares of our common stock, other shares of our
preferred stock or our debt
securities;
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•
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the
terms upon which the deposit agreement may be amended and
terminated;
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•
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a
summary of the fees to be paid by us to the
Depository;
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•
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the
terms upon which a Depository may resign or be removed by
us; and
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•
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any
other terms of the depositary shares, the deposit agreement and the
depositary receipts.
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If a
holder of depositary receipts surrenders the depositary receipts at the
corporate trust office of the Depository, unless the related depositary shares
have previously been called for redemption, converted or exchanged into other
securities of Swift, the holder will be entitled to receive at this office the
number of shares of preferred stock and any money or other property represented
by such depositary shares. Holders of depositary receipts will be entitled to
receive whole and, to the extent provided by the applicable prospectus
supplement, fractional shares of the preferred stock on the basis of the
proportion of preferred stock represented by each depositary share as specified
in the applicable prospectus supplement. Holders of shares of preferred stock
received in exchange for depositary shares will no longer be entitled to receive
depositary shares in exchange for shares of preferred stock. If the holder
delivers depositary receipts evidencing a number of depositary shares that is
more than the number of depositary shares representing the number of shares of
preferred stock to be withdrawn, the Depository will issue the holder a new
depositary receipt evidencing such excess number of depositary shares at the
same time.
Prospective
purchasers of depositary shares should be aware that special tax, accounting and
other considerations may be applicable to instruments such as depositary
shares.
We may
issue warrants for the purchase of preferred or common stock, either
independently or together with other securities. Each series of warrants will be
issued under a warrant agreement to be entered into between Swift and a bank or
trust company. You should refer to the warrant agreement relating to the
specific warrants being offered for the complete terms of such warrant agreement
and the warrants.
Each
warrant will entitle the holder to purchase the number of shares of preferred or
common stock at the exercise price set forth in, or calculable as set forth in
any applicable prospectus supplement. The exercise price may be subject to
adjustment upon the occurrence of certain events, as set forth in any applicable
prospectus supplement. After the close of business on the expiration date of the
warrant, unexercised warrants will become void. The place or places where, and
the manner in which, warrants may be exercised shall be specified in any
applicable prospectus supplement.
We may
sell the securities offered by this prospectus and applicable prospectus
supplements from time to time in one or more of the following ways:
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to
underwriters or dealers for resale to the public or to institutional
investors;
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through
agents to the public or to institutional
investors;
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•
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directly
to a limited number of
purchasers;
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•
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directly
to institutional investors; or
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•
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through
a combination of any such methods of
sale.
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Any such
underwriter, dealer or agent may be deemed to be an underwriter within the
meaning of the Securities Act of 1933.
The
applicable prospectus supplement relating to the securities will set
forth:
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•
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their
offering terms, including the name or names of any underwriters, dealers
or agents;
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•
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the
purchase price of the securities and the proceeds to us from such
sale;
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•
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any
underwriting discounts, commissions and other items constituting
compensation to underwriters, dealers or
agents;
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•
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any
public offering price;
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•
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any
discounts or concessions allowed or reallowed or paid by underwriters or
dealers to other dealers;
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•
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in
the case of debt securities, the interest rate, maturity and redemption
provisions; and
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•
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any
securities exchanges on which the securities may be
listed.
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If
underwriters or dealers are used in the sale, the securities will be acquired by
the underwriters or dealers for their own account and may be resold from time to
time in one or more transactions in accordance with the rules of the
New York Stock Exchange:
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•
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at
a fixed price or prices which may be
changed;
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•
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at
market prices prevailing at the time of
sale;
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•
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at
prices related to such prevailing market
prices; or
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•
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at
negotiated prices.
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The
securities may be offered to the public either through underwriting syndicates
represented by one or more managing underwriters or directly by one or more of
such firms. Unless otherwise set forth in an applicable prospectus supplement,
the obligations of underwriters or dealers to purchase the securities will be
subject to certain conditions precedent and the underwriters or dealers will be
obligated to purchase all the securities if any are purchased. Any public
offering price and any discounts or concessions allowed or reallowed or paid by
underwriters or dealers to other dealers may be changed from time to
time.
Securities
may be sold directly by us or through agents designated by us from time to time.
Any agent involved in the offer or sale of the securities in respect of which
this prospectus and a prospectus supplement is delivered will be named, and any
commissions payable by us to such agent will be set forth, in the prospectus
supplement. Unless otherwise indicated in the prospectus supplement, any such
agent will be acting on a best efforts basis for the period of its
appointment.
If so
indicated in the prospectus supplement, we will authorize underwriters, dealers
or agents to solicit offers from certain specified institutions to purchase
securities from us at the public offering price set forth in the prospectus
supplement pursuant to delayed delivery contracts providing for payment and
delivery on a specified date in the future. Such contracts will be subject to
any conditions set forth in the prospectus supplement and the prospectus
supplement will set forth the commission payable for solicitation of such
contracts. The underwriters and other persons soliciting such contracts will
have no responsibility for the validity or performance of any such
contracts.
Underwriters,
dealers and agents may be entitled under agreements entered into with us to be
indemnified by us against certain civil liabilities, including liabilities under
the Securities Act of 1933, or to contribution by Swift to payments which they
may be required to make. The terms and conditions of such
indemnification
will be described in an applicable prospectus supplement. Underwriters, dealers
and agents may be customers of, engage in transactions with, or perform services
for, us in the ordinary course of business.
Each
class or series of securities, if any, will be a new issue of securities with no
established trading market, other than the common stock, which is listed on the
New York Stock Exchange. We may elect to list any other class or series of
securities on any exchange, other than the common stock, but we are not
obligated to do so. Any underwriters to whom securities are sold by us for
public offering and sale may make a market in such securities, but such
underwriters will not be obligated to do so and may discontinue any market
making at any time without notice. No assurance can be given as to the liquidity
of the trading market for any securities.
Certain
persons participating in any offering of securities may engage in transactions
that stabilize, maintain or otherwise affect the price of the securities
offered. In connection with any such offering, the underwriters or agents, as
the case may be, may purchase and sell securities in the open market. These
transactions may include overallotment and stabilizing transactions and
purchases to cover syndicate short positions created in connection with the
offering. Stabilizing transactions consist of certain bids or purchases for the
purpose of preventing or retarding a decline in the market price of the
securities; and syndicate short positions involve the sale by the underwriters
or agents, as the case may be, of a greater number of securities than they are
required to purchase from us, as the case may be, in the offering. The
underwriters may also impose a penalty bid, whereby selling concessions allowed
to syndicate members or other broker-dealers for the securities sold for their
account may be reclaimed by the syndicate if such securities are repurchased by
the syndicate in stabilizing or covering transactions. These activities may
stabilize, maintain or otherwise affect the market price of the securities,
which may be higher than the price that might otherwise prevail in the open
market, and if commenced, may be discontinued at any time. These transactions
may be effected on the New York Stock Exchange, in the over-the-counter
market or otherwise. These activities will be described in more detail in the
sections entitled “Plan of Distribution” or “Underwriting” in the applicable
prospectus supplement.
Our
counsel, Baker & Hostetler LLP, Houston, Texas, will pass upon certain legal
matters in connection with the offered securities. Any underwriters
will be advised about other issues relating to any offering by their legal
counsel.
The
consolidated financial statements of Swift Energy Company appearing in Swift
Energy Company's Annual Report (Form 10-K) for the year ended December 31, 2008,
and the effectiveness of Swift Energy Company’s internal control over financial
reporting as of December 31, 2008 included therein, have been audited by Ernst
& Young LLP, independent registered public accounting firm, as set forth in
their reports thereon, included therein, and incorporated herein by reference.
Such consolidated financial statements are incorporated herein by reference in
reliance upon such reports given on the authority of such firm as experts in
accounting and auditing.
Information
set forth or incorporated by reference in this prospectus regarding our
estimated quantities of oil and gas reserves and the discounted present value of
future net cash flows therefrom is based upon estimates of such reserves and
present values audited by H.J. Gruy & Associates, Inc., independent
petroleum engineers. All such information has been so included on the
authority of such firms as experts regarding the matters contained in its
reports.
Part
II
Information
not required in prospectus
Item
14. Other
Expenses of Issuance and Distribution
The
following table sets forth the costs and expenses payable by Swift in connection
with the sale of securities being registered hereby. All amounts are estimates,
except the registration fee.
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Item
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Amount
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SEC
registration
fee
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$
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27,900
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Accounting
fees and
expenses
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175,000
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*
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Legal
fees and
expenses
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200,000
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*
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Trustees’
fees and
expenses
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20,000
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*
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Printing
expenses
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150,000
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*
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Rating
agency
fees
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125,000
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*
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Miscellaneous
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52,100
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*
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Total
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750,000
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*
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||
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*
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Estimates
solely for this item. Actual expenses may
vary.
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Item
15. Indemnification
of Officers and Directors
The
Company has the authority under Articles 2.02(A)(16) and 2.02-1 of the Texas
Business Corporation Act to indemnify its directors and officers to the extent
provided for in such statute. Swift’s Bylaws provide for indemnification of its
officers, directors and employees to the fullest extent permitted by Article
2.02-1 of the Texas Business Corporation Act. With shareholder approval, Swift
amended its Articles of Incorporation to confirm that Swift has the power to
indemnify certain persons in such circumstances as are provided in its Bylaws.
The amendment allows Swift to enter into additional insurance and indemnity
arrangements at the discretion of Swift’s board of directors. Swift has also
entered into individual indemnification agreements with each of its officers and
directors. These agreements indemnify such officers and directors to
the fullest extent permitted by law against risks of claims and actions against
them arising out of their service to and activities on behalf of the
Company..
Article
1302-7.06(B) of the Texas Miscellaneous Corporation Laws Act provides that a
corporation’s articles of incorporation may provide for the elimination or
limitation of a director’s liability. Swift’s Articles of Incorporation
eliminate the liability of directors to the corporation or its shareholders for
monetary damages for an act or omission in his capacity as a director, with
certain specified exceptions to Swift and its shareholders to the fullest extent
permitted by Article 1302-7.06(B)(1-4) of the Texas Miscellaneous Corporation
Laws Act.
We also
maintain insurance to cover amounts that we may be required to pay officers and
directors under the indemnity provisions described above and coverage for its
officers and directors against certain liabilities, including certain
liabilities under the federal securities law.
Item
16. Exhibits
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Exhibit
No.
|
Document
Description
|
||
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*
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1.1
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Form
of Underwriting Agreement
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**
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4.1
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Indenture
between Swift Energy Company and Wells Fargo Bank, National Association,
Trustee, covering debt securities to be offered hereunder, including Form
of Note or Debenture attached thereto
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*
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4.2
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Form
of Certificate of Designation for Preferred Stock, including Specimen
Certificate
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*
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4.3
|
Form
of Depositary Agreement between Swift Energy Company and Depositary to be
designated therein covering Depositary Shares to be offered hereunder,
including Form of Depositary Receipt attached thereto
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*
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4.4
|
Form
of Warrant Agreement and Trustee to be designated therein covering Common
Stock Warrants to be offered hereunder, including Form of Common Stock
Warrant attached thereto
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*
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4.5
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Form
of Warrant Agreement and Trustee to be designated therein covering
Preferred Stock Warrants to be offered hereunder, including Form of
Preferred Stock Warrant attached thereto
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4.6
|
Amended
and Restated Rights Agreement between Swift Energy Company and American
Stock Transfer & Trust Company, dated March 31, 1999 (incorporated by
reference to Swift Energy Company’s Amendment No. 1 to Form 8-A filed
April 7, 1999, File No. 1-08754)
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4.7
|
Assignment,
Assumption, Amendment and Novation Agreement between Swift Energy Company,
New Swift Energy Company and American Stock Transfer & Trust Company,
as Rights Agent effective at 9:00 a.m. local time in Austin, Texas on
December 28, 2005 (incorporated by reference as Exhibit 4.4 to Swift
Energy Company’s Form 8-K filed December 29, 2005, File No.
1-08754).
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||
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4.8
|
Amendment
No. 1 to the Rights Agreement dated December 12, 2005 between Swift Energy
Company and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference as Exhibit 4.3 to Swift Energy Company’s Form
8-K filed December 29, 2005, File No. 1-08754)
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||
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4.9
|
Amendment
No. 2 to the Rights Agreement dated December 21, 2006 between Swift Energy
Company and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference as Exhibit 4.1 to Swift Energy Company’s Form
8-K filed December 22, 2006, File No. 1-08754)
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||
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**
|
5
|
Form
of Opinion of Baker & Hostetler LLP, as to the legality of the
securities being registered
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|
**
|
12
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
**
|
23.1
|
Consent
of H.J. Gruy and Associates, Inc.
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|
**
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23.2
|
Consent
of Ernst & Young LLP
|
|
|
**
|
23.3
|
Form
of Consent of Baker & Hostetler LLP (included in Exhibit
5)
|
|
|
**
|
24
|
Power
of Attorney (included on signature page)
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|
|
**
|
25
|
Form
T-1 Statement of Eligibility of Wells Fargo Bank, National Association,
Trustee for the debt securities
|
|
|
*
|
To
be filed as an exhibit on Form 8-K of the registrant
|
|
**
|
Filed
herewith
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Item
17. Undertakings
(a) Each
undersigned registrant hereby undertake:
(1) To
file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To
include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To
reflect in the prospectus any facts or events arising after the effective date
of the registration statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than 20% change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement;
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to
such information in the registration statement.
provided,
however, that paragraphs (1)(i) and (1)(ii) do not apply if
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by registrants pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement, or is contained in a
form of prospectus filed pursuant to Rule 424(b) that is part of the
registration statement.
(2) That,
for the purpose of determining any liability under the Securities Act of 1933,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each
prospectus filed by the registrant pursuant to Rule 424(b)(3) shall be deemed to
be part of the registration statement as of the date the filed prospectus was
deemed part of and included in the registration statement; and
(ii) Each
prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5) or (b)(7) as
part of a registration statement in reliance on Rule 430B relating to an
offering made pursuant to Rule 415(a)(1)(i), (vii) or (x) for the
purpose of providing the information required by Section 10(a) of the
Securities Act of 1933 shall be deemed to be part of and included in the
registration statement as of the earlier of the date such form of prospectus is
first used after effectiveness or the date of the first contract of sale of
securities in the offering described in the prospectus. As provided in Rule
430B, for liability purposes of the issuer and any person that is at that date
an underwriter, such date shall be deemed to be a new effective date of the
registration statement relating to the securities in the registration statement
to which the prospectus relates, and the offering of such securities at that
time shall be deemed to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or prospectus that
is part of the registration statement or made in a document incorporated or
deemed incorporated by reference into the registration statement or prospectus
that is part of the registration statement
will, as
to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or
prospectus that was part of the registration statement or made in any such
document immediately prior to such effective date.
(5) That,
for the purpose of determining liability of a registrant under the Securities
Act of 1933 to any purchaser in the initial distribution of the securities, each
registrant undertakes that in a primary offering of securities of a registrant
pursuant to this registration statement, regardless of the underwriting method
used to sell the securities to the purchaser, if the securities are offered or
sold to such purchaser by means of any of the following communications, the
registrant will be a seller to the purchaser and will be considered to offer or
sell such securities to such purchaser:
(i) Any
preliminary prospectus or prospectus of the registrant relating to the offering
required to be filed pursuant to Rule 424;
(ii) Any
free writing prospectus relating to the offering prepared by or on behalf of the
registrant or used or referred to by the registrant;
(iii) The
portion of any other free writing prospectus relating to the offering containing
material information about the registrant or its securities provided by or on
behalf of the registrant; and
(iv) Any
other communication that is an offer in the offering made by the registrant to
the purchaser.
(b) Each
undersigned registrant hereby undertakes that, for purposes of determining any
liability under the Securities Act of 1933, each filing of the registrant’s
annual report pursuant to Section 13(a) or 15(d) of the Securities Exchange
Act of 1934 (and, where applicable, each filing of an employee benefit plan’s
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(c) Each
undersigned registrant hereby undertakes to supplement the prospectus, after the
expiration of the subscription period to set forth the results of the
subscription offer, the transactions by the underwriters during the subscription
period, the amount of unsubscribed securities to be purchased by the
underwriters, and the terms of any subsequent reoffering thereof. If any public
offering by the underwriters is to be made on terms differing from those set
forth on the cover page of the prospectus, a post-effective amendment will be
filed to set forth the terms of such offering.
(d)
Insofar as indemnification for liabilities arising under the Securities Act of
1933 may be permitted to directors, officers and controlling persons of each
registrant pursuant to the foregoing provisions, or otherwise, each registrant
has been advised that in the opinion of the Securities and Exchange Commission
such indemnification is against public policy as expressed in the Securities Act
of 1933 and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by a registrant
of expenses incurred or paid by a director, officer or controlling person of a
registrant in the successful defense of any action, suit or proceeding) is
asserted by such director, officer or controlling person in connection with the
securities being registered, that registrant will, unless in the opinion of its
counsel the has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue.
(e) Each
undersigned registrant hereby undertakes to file an application for the purpose
of determining the eligibility of the trustee to act under subsection (a)
of Section 310 of the Trust Indenture Act (“Act”) in accordance with
the rules and regulations prescribed by the Commission under Section 305(b)
2 of the Act.
Signatures
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Houston, State of Texas, on May 19,
2009.
|
SWIFT
ENERGY COMPANY
|
||
|
By:
|
/s/
Terry E. Swift
|
|
|
Terry
E. Swift
Chairman
of the Board and Chief Executive
Officer
|
||
Each
person whose signature appears below as a signatory to this Registration
Statement constitutes and appoints Terry E. Swift, Bruce H. Vincent and Alton D.
Heckaman, Jr., or any of them, his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this registration statement, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
|
Signatures
|
Title
|
Date
|
|
/s/
Terry E. Swift
|
Chairman
of the Board and
Chief
Executive Officer
(Principal
Executive Officer)
|
May
19, 2009
|
|
Terry
E. Swift
|
||
|
/s/
Bruce H. Vincent
|
President
and Director
|
May
19, 2009
|
|
Bruce
H. Vincent
|
||
|
/s/
Alton D. Heckaman, Jr.
|
Executive
Vice President and
Chief
Financial Officer
(Principal
Financial Officer)
|
May
19, 2009
|
|
Alton
D. Heckaman, Jr.
|
||
|
/s/
David Wesson
|
Controller
(Principal
Accounting Officer)
|
May
19, 2009
|
|
David
W. Wesson
|
|
/s/
Deanna L. Cannon
|
Director
|
May
19, 2009
|
|
Deanna
L. Cannon
|
||
|
/s/
Raymond E. Galvin
|
Director
|
May
15, 2009
|
|
Raymond
E. Galvin
|
||
|
/s/
Douglas J. Lanier
|
Director
|
May
15, 2009
|
|
Douglas
J. Lanier
|
||
|
/s/
Greg Matiuk
|
Director
|
May
13, 2009
|
|
Greg
Matiuk
|
||
|
/s/
Henry C. Montgomery
|
Director
|
May
19, 2009
|
|
Henry
C. Montgomery
|
||
|
/s/
Clyde W. Smith
|
Director
|
May
19, 2009
|
|
Clyde
W. Smith, Jr.
|
||
|
/s/
Charles J. Swindells
|
Director
|
May
19, 2009
|
|
Charles
J. Swindells
|
Signatures
Pursuant
to the requirements of the Securities Act of 1933, as amended, the registrant
has duly caused this registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Houston, State of Texas,
on May 19, 2009.
|
SWIFT
ENERGY OPERATING, LLC
|
||
|
By:
|
/s/
Terry E. Swift
|
|
|
Terry
E. Swift
Chairman
of the Board and Chief Executive
Officer
|
||
Each
person whose signature appears below as a signatory to this Registration
Statement constitutes and appoints Terry E. Swift, Bruce H. Vincent and Alton D.
Heckaman, Jr., or any of them, his true and lawful attorney-in-fact and agent
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this registration statement, and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the Securities and
Exchange Commission, granting unto said attorney-in-fact and agent, full power
and authority to do and perform each and every act and thing requisite and
necessary to be done in and about the premises, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and
confirming all that said attorney-in-fact and agent or his substitute may
lawfully do or cause to be done by virtue hereof.
|
Signatures
|
Title
|
Date
|
|
/s/
Terry E. Swift
|
Chairman
of the Board,
Chief
Executive Officer and Manager
(Principal
Executive Officer)
|
May
19, 2009
|
|
Terry
E. Swift
|
||
|
/s/
Bruce H. Vincent
|
President
and Manager
|
May
19, 2009
|
|
Bruce
H. Vincent
|
||
|
/s/
Alton D. Heckaman, Jr.
|
Executive
Vice President,
Chief
Financial Officer and Manager
(Principal
Financial Officer)
|
May
19, 2009
|
|
Alton
D. Heckaman, Jr.
|
||
|
/s/
David W. Wesson
|
Controller
(Principal
Accounting Officer)
|
May
19, 2009
|
|
David
W. Wesson
|
||
Index
to exhibits
|
Exhibit
No.
|
Document
Description
|
||
|
*
|
1.1
|
Form
of Underwriting Agreement
|
|
|
**
|
4.1
|
Indenture
between Swift Energy Company and Wells Fargo Bank National Association,
Trustee, covering debt securities to be offered hereunder, including Form
of Note or Debenture attached thereto
|
|
|
*
|
4.2
|
Form
of Certificate of Designation for Preferred Stock, including Specimen
Certificate
|
|
|
*
|
4.3
|
Form
of Depositary Agreement between Swift Energy Company and Depositary to be
designated therein covering Depositary Shares to be offered hereunder,
including Form of Depositary Receipt attached thereto
|
|
|
*
|
4.4
|
Form
of Warrant Agreement and Trustee to be designated therein covering Common
Stock Warrants to be offered hereunder, including Form of Common Stock
Warrant attached thereto
|
|
|
*
|
4.5
|
Form
of Warrant Agreement and Trustee to be designated therein covering
Preferred Stock Warrants to be offered hereunder, including Form of
Preferred Stock Warrant attached thereto
|
|
|
4.6
|
Amended
and Restated Rights Agreement between Swift Energy Company and American
Stock Transfer & Trust Company, dated March 31, 1999 (incorporated by
reference to Swift Energy Company’s Amendment No. 1 to Form 8-A filed
April 7, 1999, File No. 1-08754)
|
||
|
4.7
|
Assignment,
Assumption, Amendment and Novation Agreement between Swift Energy Company,
New Swift Energy Company and American Stock Transfer & Trust Company,
as Rights Agent effective at 9:00 a.m. local time in Austin, Texas on
December 28, 2005 (incorporated by reference as Exhibit 4.4 to Swift
Energy Company’s Form 8-K filed December 29, 2005, File No.
1-08754).
|
||
|
4.8
|
Amendment
No. 1 to the Rights Agreement dated December 12, 2005 between Swift Energy
Company and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference as Exhibit 4.3 to Swift Energy Company’s Form
8-K filed December 29, 2005, File No. 1-08754)
|
||
|
4.9
|
Amendment
No. 2 to the Rights Agreement dated December 21, 2006 between Swift Energy
Company and American Stock Transfer & Trust Company, as Rights Agent
(incorporated by reference as Exhibit 4.1 to Swift Energy Company’s Form
8-K filed December 22, 2006, File No. 1-08754)
|
||
|
**
|
5
|
Form
of Opinion of Baker & Hostetler LLP, as to the legality of the
securities being registered
|
|
|
**
|
12
|
Computation
of Ratio of Earnings to Fixed Charges
|
|
|
**
|
23.1
|
Consent
of H.J. Gruy and Associates, Inc.
|
|
|
**
|
23.2
|
Consent
of Ernst & Young LLP
|
|
|
**
|
23.3
|
Form
of Consent of Baker & Hostetler LLP (included in Exhibit
5)
|
|
|
**
|
24
|
Power
of Attorney (included on signature page)
|
|
|
**
|
25
|
Form
T-1 Statement of Eligibility of Wells Fargo Bank, National Association,
Trustee for the debt securities
|
|
|
*
|
To
be filed as an exhibit on Form 8-K of the registrant
|
|
**
|
Filed
herewith
|
27