1,500,000 SHARES OF COMMON STOCK
SWIFT ENERGY COMPANY
UNDERWRITING AGREEMENT
APRIL 9, 2002
CREDIT SUISSE FIRST BOSTON CORPORATION
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
1. Introductory. Swift Energy Company, a Texas corporation ("COMPANY"),
proposes to issue and sell to Credit Suisse First Boston Corporation ("CSFBC")
1,500,000 shares ("FIRM SECURITIES") of its common stock ("COMMON STOCK") and
also proposes to issue and sell to CSFBC, at the option of CSFBC, an aggregate
of not more than 225,000 additional shares ("OPTIONAL SECURITIES") of its Common
Stock as set forth below. The Firm Securities and the Optional Securities are
herein collectively called the "SECURITIES". The Company hereby agrees with
CSFBC as follows:
2. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, CSFBC that:
(a) A registration statement (No. 333-64692), including a
prospectus, relating to the Securities has been filed with the Securities and
Exchange Commission ("COMMISSION") and has become effective. Such registration
statement, as amended at the time of this Agreement, is hereinafter referred to
as the "REGISTRATION STATEMENT", and the prospectus included in such
Registration Statement, as supplemented by the prospectus supplement thereto and
as further supplemented to reflect the terms of the Securities and the terms of
the offering thereof, in each case as first filed with the Commission pursuant
to and in accordance with Rule 424(b) ("RULE 424(b)") under the Securities Act
of 1933 ("ACT"), including all material incorporated by reference therein, is
hereinafter referred to as the "PROSPECTUS".
(b) On the effective date of the Registration Statement
relating to the Securities, such Registration Statement conformed in all
respects to the requirements of the Act and the rules and regulations of the
Commission ("RULES AND REGULATIONS") and did not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and on the date of
this Agreement, the Registration Statement and the Prospectus conform in all
respects to the requirements of the Act and the Rules and Regulations, and
neither of such documents includes any untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein not misleading, except that the foregoing does not
apply to statements in or omissions from any of such documents based upon
written information furnished to the Company by CSFBC specifically for use
therein.
(c) The Company has been duly incorporated and is an existing
corporation in good standing under the laws of the State of Texas, with power
and authority (corporate and other) to own its properties and conduct its
business as described in the Prospectus; and the Company is duly qualified to do
business as a foreign corporation in good standing in all other jurisdictions in
which its ownership or lease of property or the conduct of its business requires
such qualification.
(d) Each subsidiary of the Company has been duly incorporated
and is an existing corporation in good standing under the laws of the
jurisdiction of its incorporation, with power and authority (corporate and
other) to own its properties and conduct its business as described in the
Prospectus; and each subsidiary of the Company is duly qualified to do business
as a foreign corporation in good standing in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification; all of the issued and
outstanding capital stock of each subsidiary of the Company has been duly
authorized and validly issued and is fully paid and nonassessable; and the
capital stock of each subsidiary owned by the Company, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(e) The Securities and all other outstanding shares of capital
stock of the Company have been duly authorized; all outstanding shares of
capital stock of the Company are, and, when the Securities have been delivered
and paid for in accordance with this Agreement on a Closing Date (as defined
below), such Securities will have been, validly issued, fully paid and
nonassessable and will conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no preemptive rights with
respect to its Common Stock.
(f) Except as disclosed in the Prospectus, there are no
contracts, agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or CSFBC for a brokerage
commission, finder's fee or other like payment.
(g) Except for the registration rights relating to 220,000
shares of the Company's Common Stock, which are the subject of the registration
statement on Form S-3 (No. 333-84530) filed by the Company with the Commission
on March 19, 2002, which registration statement the Company is obligated to keep
effective one year, there are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company
to file a registration statement under the Act with respect to any securities of
the Company owned or to be owned by such person or to require the Company to
include such securities in the securities registered pursuant to the
Registration Statement or in any securities being registered pursuant to any
other registration statement filed by the Company under the Act.
(h) The Securities have been approved for listing on the New
York Stock Exchange (the "STOCK EXCHANGE") subject to notice of issuance.
(i) No consent, approval, authorization, or order of, or
filing with, any governmental agency or body or any court is required for the
consummation of the transactions contemplated by this Agreement in connection
with the issuance and sale of the Securities by the Company, except such as have
been obtained and made under the Act and such as may be required under state
securities laws.
(j) The execution, delivery and performance of this Agreement
and the issuance and sale of the Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default under,
any statute, any rule, regulation or order of any governmental agency or body or
any court, domestic or foreign, having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any agreement or
instrument to which the Company or any such subsidiary is a party or by which
the Company or any such subsidiary is bound or to which any of the properties of
the Company or any such subsidiary is subject, or the charter or by-laws of the
Company or any such subsidiary, and the Company has full power and authority to
authorize, issue and sell the Securities as contemplated by this Agreement.
(k) This Agreement has been duly authorized, executed and
delivered by the Company.
(l) The Company and its subsidiaries have legal, valid and
defensible title to all of their interests in oil and gas properties and to all
other real and personal property owned by them, in each case free and clear of
all mortgages, pledges, security interests, claims, liens, encumbrances,
restrictions and defects of any kind, except (1) such as are described in the
Prospectus, (2) liens and encumbrances under operating agreements, unitization
and pooling agreements, production sales contracts, farm-out agreements and
other oil and gas exploration and production agreements, in each case that
secure payment of amounts not yet due and payable for the performance of other
inchoate obligations and are of a scope and nature customary in connection with
similar drilling and producing operations, or (3) those that do not materially
affect or interfere with the use made and proposed to be made of such properties
taken as a whole; and any property held under lease or sublease by the Company
or any of its subsidiaries is held under valid, subsisting and enforceable
leases or subleases with such exceptions as are not material and do not
interfere with the use made and proposed to be made of such properties taken as
a whole by the Company and its subsidiaries or except such as are described in
the Prospectus; and neither the Company nor any of its subsidiaries has any
notice or knowledge of any material claim of any sort that has been, or may be,
asserted by
anyone adverse to the Company's or any of its subsidiaries rights as lessee or
sublessee under any lease or sublease described above, or affecting or
questioning the Company's or any of its subsidiaries' rights to the continued
possession of the leased or subleased premises under any such lease or sublease
in conflict with the terms thereof.
(m) The Company and its subsidiaries possess adequate
certificates, authorities or permits issued by appropriate governmental agencies
or bodies necessary to conduct the business now operated by them and have not
received any notice of proceedings relating to the revocation or modification of
any such certificate, authority or permit that, if determined adversely to the
Company or any of its subsidiaries, would individually or in the aggregate have
a material adverse effect on the condition (financial or other), business,
properties or results of operations of the Company and its subsidiaries taken as
a whole ("MATERIAL ADVERSE EFFECT").
(n) No labor dispute with the employees of the Company or any
subsidiary exists or, to the knowledge of the Company, is imminent that might
have a Material Adverse Effect.
(o) The Company and its subsidiaries own, possess or can
acquire on reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential information and other
intellectual property (collectively, "INTELLECTUAL PROPERTY RIGHTS") necessary
to conduct the business now operated by them, or presently employed by them, and
have not received any notice of infringement of or conflict with asserted rights
of others with respect to any intellectual property rights that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect.
(p) Except as disclosed in the Prospectus, neither the Company
nor any of its subsidiaries is in violation of any statute, any rule,
regulation, decision or order of any governmental agency or body or any court,
domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment
or human exposure to hazardous or toxic substances (collectively, "ENVIRONMENTAL
LAWS"), owns or operates any real property contaminated with any substance that
is subject to any environmental laws, is liable for any off-site disposal or
contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or
claim would individually or in the aggregate have a Material Adverse Effect; and
the Company is not aware of any pending investigation which might lead to such a
claim.
(q) Except as disclosed in the Prospectus, there are no
pending actions, suits or proceedings against or affecting the Company, any of
its subsidiaries or any of their respective properties that, if determined
adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would materially and adversely
affect the ability of the Company to perform its obligations under this
Agreement, or which are otherwise material in the context of the sale of the
Securities; and no such actions, suits or proceedings are threatened or, to the
Company's knowledge, contemplated.
(r) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the Company
and its consolidated subsidiaries as of the dates shown and their results of
operations and cash flows for the periods shown, and, except as otherwise
disclosed in the Prospectus, such financial statements have been prepared in
conformity with the generally accepted accounting principles in the United
States applied on a consistent basis and the schedules included in the
Registration Statement and Prospectus present fairly the information required to
be stated therein.
(s) Except as disclosed in the Prospectus, since the date of
the latest audited financial statements included in the Prospectus there has
been no material adverse change, nor any development or event involving a
prospective material adverse change, in the condition (financial or other),
business, properties or results of operations of the Company and its
subsidiaries taken as a whole, and, except as disclosed in or contemplated by
the Prospectus, there has been no dividend or distribution of any kind declared,
paid or made by the Company on any class of its capital stock.
(t) The Company is subject to the reporting requirements of
either Section 13 or Section 15(d) of the Securities Exchange Act of 1934 and
files reports with the Commission on the Electronic Data Gathering, Analysis,
and Retrieval (XXXXX) system.
(u) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of the proceeds thereof
as described in the Prospectus, will not be an "investment company" as defined
in the Investment Company Act of 1940.
3. Purchase, Sale and Delivery of Securities. On the basis of the
representations, warranties and agreements herein contained, but subject to the
terms and conditions herein set forth, the Company agrees to sell to CSFBC, and
CSFBC agrees to purchase from the Company, at a purchase price of $17.75 per
share, the Firm Securities.
The Company will deliver the Firm Securities to CSFBC, against payment
of the purchase price in Federal (same day) funds by official bank check or
checks or wire transfer to an account at a bank acceptable to CSFBC drawn to the
order of Swift Energy Company at the office of Jenkens & Xxxxxxxxx, P.C., 0000
Xxxxxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000, at 10:00 A.M., New York time, on
April 12, 2002, or at such other time not later than seven full business days
thereafter as CSFBC and the Company determine, such time being herein referred
to as the "FIRST CLOSING DATE". For purposes of Rule 15c6-1 under the Securities
Exchange Act of 1934, the First Closing Date (if later than the otherwise
applicable settlement date) shall be the settlement date for payment of funds
and delivery of securities for all the Securities sold pursuant to the offering.
The certificates for the Firm Securities so to be delivered will be in
definitive form, in such denominations and registered in such names as CSFBC
requests and will be made available for checking and packaging at the above
office of Jenkens & Xxxxxxxxx, P.C. at least 24 hours prior to the First Closing
Date.
In addition, upon written notice from CSFBC given to the Company from
time to time not more than 30 days subsequent to the date of the Prospectus,
CSFBC may purchase all or less than all of the Optional Securities at the
purchase price per Security to be paid for the Firm Securities. The Company
agrees to sell to CSFBC the number of shares of Optional Securities specified in
such notice and CSFBC agrees to purchase such Optional Securities. Such Optional
Securities may be purchased by CFSBC only for the purpose of covering
over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities
previously have been, or simultaneously are, sold and delivered. The right to
purchase the Optional Securities or any portion thereof may be exercised from
time to time and to the extent not previously exercised may be surrendered and
terminated at any time upon notice by CSFBC to the Company.
Each time for the delivery of and payment for the Optional Securities,
being herein referred to as an "OPTIONAL CLOSING DATE", which may be the First
Closing Date (the First Closing Date and each Optional Closing Date, if any,
being sometimes referred to as a "CLOSING DATE"), shall be determined by CSFBC
but shall be not later than five full business days after written notice of
election to purchase Optional Securities is given. The Company will deliver the
Optional Securities being purchased on each Optional Closing Date to CSFB
against payment of the purchase price therefore in Federal (same day) funds by
official bank check or checks or wire transfer to an account at a bank
acceptable to CSFBC drawn to the order of Swift Energy Company, at the above
office of Jenkens & Xxxxxxxxx, P.C. The certificates for the Optional Securities
being purchased on each Optional Closing Date will be in definitive form, in
such denominations and registered in such names as CSFBC requests upon
reasonable notice prior to such Optional Closing Date and will be made available
for checking and packaging at the above office of Jenkens & Xxxxxxxxx, P.C. at a
reasonable time in advance of such Optional Closing Date.
4. Offering by CSFBC. It is understood that CSFBC proposes to offer the
Securities for sale to the public as set forth in the Prospectus.
5. Certain Agreements of the Company. The Company agrees with CSFBC
that:
(a) The Company will file the Prospectus with the Commission
pursuant to and in accordance with Rule 424(b)(2) (or, if applicable and if
consented to by CSFBC, subparagraph (5)) not later than the second business day
following the execution and delivery of this Agreement.
(b) The Company will advise CSFBC promptly of any proposal to
amend or supplement the Registration Statement or the Prospectus and will afford
CSFBC a reasonable opportunity to comment on any such proposed amendment or
supplement; and the Company will also advise CSFBC promptly of the filing of any
such amendment or supplement and of the institution by the Commission of any
stop order proceedings in respect of the
Registration Statement or of any part thereof and will use its best efforts to
prevent the issuance of any such stop order and to obtain as soon as possible
its lifting, if issued.
(c) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act in connection with sales by
CSFBC or any dealer, any event occurs as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary to make the statements
therein, in the light of the circumstances under which they were made, not
misleading, or if it is necessary at any time to amend the Prospectus to comply
with the Act, the Company promptly will notify CSFBC of such event and will
promptly prepare and file with the Commission, at its own expense, an amendment
or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither CSFBC's consent to, nor its delivery
of, any such amendment or supplement shall constitute a waiver of any of the
conditions set forth in Section 5 hereof.
(d) As soon as practicable, but not later than 16 months,
after the date of this Agreement, the Company will make generally available to
its securityholders an earnings statement covering a period of at least 12
months beginning after the later of (i) the effective date of the registration
statement relating to the Securities, (ii) the effective date of the most recent
post-effective amendment to the Registration Statement to become effective prior
to the date of this Agreement and (iii) the date of the Company's most recent
Annual Report on Form 10-K filed with the Commission prior to the date of this
Agreement, which will satisfy the provisions of Section 11(a) of the Act.
(e) The Company will furnish to CSFBC copies of the
Registration Statement, including all exhibits, any related preliminary
prospectus, any related preliminary prospectus supplement, the Prospectus and
all amendments and supplements to such documents, in each case as soon as
available and in such quantities as CSFBC reasonably requests. The Company will
pay the expenses of printing and distributing to CSFBC all such documents.
(f) The Company will arrange for the qualification of the
Securities for sale under the laws of such jurisdictions as CSFBC designates and
will continue such qualifications in effect so long as required for the
distribution.
(g) During the period of three years hereafter, the Company
will furnish to CSFBC, as soon as practicable after the end of each fiscal year,
a copy of its annual report to stockholders for such year; and the Company will
furnish to CSFBC (i) as soon as available, a copy of each report and any
definitive proxy statement of the Company filed with the Commission under the
Securities Exchange Act of 1934 or mailed to stockholders, and (ii) from time to
time, such other information concerning the Company as CSFBC may reasonably
request.
(h) The Company will pay all expenses incident to the
performance of its obligations under this Agreement, for any filing fees or
other expenses (including fees and disbursements of counsel) incurred in
connection with qualification of the Securities for sale under the laws of such
jurisdictions as CSFBC designates and the printing of memoranda relating thereto
and for expenses incurred in distributing preliminary prospectus supplements,
and the Prospectus (including any amendments and supplements thereto) to CSFBC.
The Company and CSFBC will pay for their respective travel expenses and any
other expenses in connection with attending or hosting meetings with prospective
purchasers of the Securities.
(i) For a period of 90 days after the date of the initial
offering of the Securities, the Company will not offer, sell, contract to sell,
pledge or otherwise dispose of, directly or indirectly, or file with the
Commission a registration statement under the Act relating to, any additional
shares of Common Stock or securities convertible into or exchangeable or
exercisable for any shares of Common Stock, or publicly disclose the intention
to make any such offer, sale, pledge, disposition or filing, without the prior
written consent of CSFBC, except issuances of Common Stock pursuant to the
exercise of options outstanding on the date of this Agreement, grants of
employee stock options pursuant to the terms of a plan in effect on the date of
this Agreement or issuances of Common Stock pursuant to the exercise of such
options.
6. Conditions of the Obligations of CSFBC. The obligations of CSFBC to
purchase and pay for the Firm Securities on the First Closing Date and the
Optional Securities to be purchased on each Optional Closing Date will be
subject to the accuracy of the representations and warranties on the part of the
Company herein, to the accuracy of the statements of Company officers made
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions precedent:
(a) CSFBC shall have received a letter, dated the date of this
Agreement of Xxxxxx Xxxxxxxx LLP confirming that they are independent public
accountants within the meaning of the Act and the applicable published Rules and
Regulations thereunder and stating to the effect that:
(i) in their opinion the financial statements and any
schedules and any summary of earnings examined by them and
included in the Prospectus comply as to form in all material
respects with the applicable accounting requirements of the
Act and the related published Rules and Regulations;
(ii) they have performed the procedures specified by
the American Institute of Certified Public Accountants for a
review of interim financial information as described in
Statement of Auditing Standards No. 71, Interim Financial
Information, on any unaudited financial statements included in
the Registration Statement;
(iii) on the basis of the review referred to in
clause (ii) above, a reading of the latest available interim
financial statements of the Company, if any, inquiries of
officials of the Company who have responsibility for financial
and accounting matters and other specified procedures, nothing
came to their attention that caused them to believe that:
(A) the unaudited financial statements, if
any, and any summary of earnings included in the
Prospectus do not comply as to form in all material
respects with the applicable accounting requirements
of the Act and the related published Rules and
Regulations or any material modifications should be
made to such unaudited financial statements and
summary of earnings, if any, for them to be in
conformity with generally accepted accounting
principles;
(B) at the date of the latest available
balance sheet read by such accountants, or at a
subsequent specified date not more than three
business days prior to the date of the such letter,
there was any change in the capital stock or any
increase in short-term indebtedness or long-term debt
of the Company and its consolidated subsidiaries or,
at the date of the latest available balance sheet
read by such accountants, there was any decrease in
consolidated net current assets or net assets, as
compared with amounts shown on the latest balance
sheet included in the Prospectus; or
(C) for the period from the closing date of
the latest income statement included in the
Prospectus to the closing date of the latest
available income statement read by such accountants
there were any decreases, as compared with the
corresponding period of the previous year and with
the period of corresponding length ended the date of
the latest income statement included in the
Prospectus, in consolidated net sales, net operating
income per share amounts of consolidated income
before extraordinary items or net income or in the
ratio of earnings to fixed charges;
except in all cases set forth in clauses (B) and (C) above for
changes, increases or decreases which the Prospectus discloses
have occurred or may occur or which are described in such
letter; and
(iv) they have compared specified dollar amounts (or
percentages derived from such dollar amounts) and other
financial information contained in the Prospectus (in each
case to the extent that such dollar amounts, percentages and
other financial information are derived from the general
accounting records of the Company and its subsidiaries subject
to the internal controls of
the Company's accounting system or are derived directly from
such records by analysis or computation) with the results
obtained from inquiries, a reading of such general accounting
records and other procedures specified in such letter and have
found such dollar amounts, percentages and other financial
information to be in agreement with such results, except as
otherwise specified in such letter.
All financial statements and schedules included in material incorporated by
reference into the Prospectus shall be deemed included in the Prospectus for
purposes of this subsection.
(b) The Prospectus shall have been filed with the Commission
in accordance with the Rules and Regulations and Section 4(a) of this Agreement.
No stop order suspending the effectiveness of the Registration Statement or of
any part thereof shall have been issued and no proceedings for that purpose
shall have been instituted or, to the knowledge of the Company or CSFBC, shall
be contemplated by the Commission.
(c) Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change in U.S. or international
financial, political or economic conditions or currency exchange rates or
exchange controls that, in the good faith judgment of CSFBC, is material and
adverse and makes it impractical or inadvisable to proceed with completion of
the public offering or the sale of and payment for the Securities; or (ii)(A)
any change, or any development or event involving a prospective change, in the
condition (financial or other), business, properties or results of operations of
the Company and its subsidiaries taken as one enterprise which, in the judgment
of CSFBC, is material and adverse and makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Securities; (B) any downgrading in the rating of any debt securities of the
Company by any "nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), or any public announcement
that any such organization has under surveillance or review its rating of any
debt securities of the Company (other than an announcement with positive
implications of a possible upgrading, and no implication of a possible
downgrading, of such rating) or any announcement that the Company has been
placed on negative outlook; (C) any material suspension or material limitation
of trading in securities generally on the New York Stock Exchange, or any
setting of minimum prices for trading on such exchange, or any suspension of
trading of any securities of the Company on any exchange or in the
over-the-counter market; (D) any banking moratorium declared by U.S. Federal or
New York authorities; (E) any attack on, outbreak or escalation of hostilities
or act of terrorism involving the United States, any declaration of war by
Congress or any other national or international calamity or emergency if, in the
judgment of CSFBC the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the public offering or the sale of and payment for
the Securities; or (F) in the case of any of the foregoing factors listed in (i)
or (ii)(E) above existing at the time of the execution of this Agreement, a
material acceleration or worsening thereof.
(d) CSFBC shall have received two opinions, both dated such
Closing Date, one of Jenkens & Xxxxxxxxx, counsel for the Company, as to the
matters set forth below relating to the Company and its domestic subsidiaries
where applicable, and one of Simpson, Grierson, counsel for the Company's New
Zealand subsidiaries, as to the matters set forth below in (ii) relating to the
Company's New Zealand subsidiaries, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the
State of Texas, with corporate power and authority to own its
properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to do business
as a foreign corporation in good standing in all other
jurisdictions in which its ownership or lease of property or
the conduct of its business requires such qualification,
except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect;
(ii) Each of the Company's subsidiaries that is a
corporation is validly existing as a corporation in good
standing under the laws of the jurisdiction of its
incorporation has corporate power and authority to own, lease
and operate its properties and to conduct its business as
described in the Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required,
whether by reason
of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in
good standing would not result in a Material Adverse Effect.
All of the issued and outstanding capital stock or other
equity interests of each of the Company's subsidiaries has
been duly authorized and validly issued, is fully paid and
non-assessable and, to such counsel's knowledge and
information, is owned by the Company, directly or through
subsidiaries, free and clear of any security interest,
mortgage, pledge, lien, encumbrance, claim or equity, other
than as described in the Prospectus;
(iii) The statements in the Prospectus under the
heading "Description of Capital Stock", to the extent that
they constitute summaries of matters of law or regulation or
legal conclusions, have been reviewed by such counsel and
accurately summarize the matters described therein in all
material respects; to the knowledge of such counsel, there are
no franchises, contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments that should be
described in the Prospectus that are not described or referred
to in or incorporated by reference into the Prospectus;
(iv) The Company has full corporate power and
authority to execute and deliver this Agreement and to perform
its obligations hereunder, and all corporate or other action
required to be taken for the due and proper authorization,
execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly and
validly taken on the part of the Company;
(v) The Firm Securities and, if acquired, Optional
Securities, and all other outstanding shares of the Common
Stock of the Company have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Securities;
(vi) To such counsel's knowledge, there are no
pending actions or suits or judicial, arbitral, rule-making,
administrative or other proceedings to which the Company or
any of its subsidiaries is a party or of which any property or
assets of the Company or any of its subsidiaries is the
subject which (A) if determined adversely to the Company or
any of its subsidiaries, could reasonably be expected to have
a Material Adverse Effect or (B) questions the validity or
enforceability of this Agreement or any action taken or to be
taken pursuant thereto; and to our knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(vii) The Company is not and, after giving effect to
the offering and sale of the Securities and the application of
the proceeds thereof as described in the Prospectus, will not
be an "investment company" as defined in the Investment
Company Act of 1940.
(viii) No consent, approval, authorization or order
of, or filing with, any governmental agency or body or any
court is required for the consummation of the transactions
contemplated by this Agreement in connection with the issuance
or sale of the Securities by the Company, except such as have
been obtained and made under the Act and such as may be
required under state securities laws;
(ix) The execution, delivery and performance of this
Agreement and the issuance and sale of the Securities will not
result in a breach or violation of any of the terms and
provisions of, or constitute a default under, any statute, any
rule, regulation or order of any governmental agency or body
or any court having jurisdiction over the Company or any
subsidiary of the Company or any of their properties, or any
agreement or instrument to which the Company or any such
subsidiary is a party or by which the Company or any such
subsidiary is bound or to which any of the properties of the
Company or any such subsidiary is subject, or the charter or
by-laws
of the Company or any such subsidiary, and the Company has
full power and authority to authorize, issue and sell the
Securities as contemplated by this Agreement;
(x) The Registration Statement has become effective
under the Act, the Prospectus was filed with the Commission
pursuant to the subparagraph of Rule 424(b) specified in such
opinion on the date specified therein, and, to the best of the
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement or any part
thereof has been issued by the Commission and no proceedings
for that purpose have been instituted or are pending or
threatened by the Commission under the Act, and the
registration statement relating to the Securities, as of its
effective date, the Registration Statement and the Prospectus,
as of the date of this Agreement, and any amendment or
supplement thereto, as of its date, complied as to form in all
material respects with the applicable requirements of Form S-3
under the Act and the Rules and Regulations; such counsel have
no reason to believe that such registration statement, as of
its effective date, the Registration Statement, as of the date
of this Agreement or as of the Closing Date, or any amendment
thereto, as of its date or as of the Closing Date, contained
any untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary
to make the statements therein not misleading or that the
Prospectus, as of the date of this Agreement or as of such
Closing Date, or any amendment or supplement thereto, as of
its date or as of the Closing Date, contained any untrue
statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not
misleading; the descriptions in the Registration Statement and
Prospectus of statutes, legal and governmental proceedings and
contracts and other documents are accurate and fairly present
the information required to be shown; and such counsel do not
know of any legal or governmental proceedings required to be
described in the Prospectus which are not described as
required or of any contracts or documents of a character
required to be described in the Registration Statement or
Prospectus or to be filed as exhibits to the Registration
Statement which are not described and filed as required; it
being understood that such counsel need express no opinion as
to the financial statements or other financial data contained
in the Registration Statement or the Prospectus; and
(xi) This Agreement has been duly authorized,
executed and delivered by the Company.
(e) CSFBC shall have received from Xxxxxx & Xxxxxx L.L.P.,
counsel for CSFBC, such opinion or opinions, dated such Closing Date, with
respect to the incorporation of the Company, the validity of the Securities
delivered on such Closing Date, the Registration Statement, the Prospectus and
other related matters as CSFBC may require, and the Company shall have furnished
to such counsel such documents as they reasonably request for the purpose of
enabling them to pass upon such matters.
(f) CSFBC shall have received a certificate, dated such
Closing Date, of the President or any Vice President and the principal financial
or accounting officer of the Company in which such officers, to the best of
their knowledge after reasonable investigation, shall state that the
representations and warranties of the Company in this Agreement are true and
correct, that the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied hereunder at or prior to
such Closing Date, that no stop order suspending the effectiveness of the
Registration Statement or of any part thereof has been issued and no proceedings
for that purpose have been instituted or are contemplated by the Commission and
that, subsequent to the date of the most recent financial statements in the
Prospectus, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition
(financial or other), business, properties or results of operations of the
Company and its subsidiaries taken as a whole except as set forth in or
contemplated by the Prospectus or as described in such certificate.
(g) CSFBC shall have received letters, dated the date of this
Agreement and such Closing Date, of Xxxxxx Xxxxxxxx LLP, which meet the
requirements of subsection (a) of this Section, except that the specified date
referred to in such subsection will be a date not more than three days prior to
such Closing Date (as appropriate) for the purposes of this subsection.
(h) CSFBC shall have received letters from each of the
Company's executive officers and directors in the form attached hereto as Annex
A.
The Company will furnish CSFBC with such conformed copies of such
opinions, certificates, letters and documents as CSFBC reasonably requests.
CSFBC may in its sole discretion waive compliance with any conditions to the
obligations of CSFBC hereunder, whether in respect of such Closing Date or
otherwise.
7. Indemnification and Contribution. (a) The Company will indemnify and
hold harmless CSFBC, its partners, directors and officers and each person, if
any, who controls CSFBC within the meaning of Section 15 of the Act, against any
losses, claims, damages or liabilities, joint or several, to which CSFBC may
become subject, under the Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon a failure to deliver a letter of Xxxxxx Xxxxxxxx on and as of the date of
this Agreement and on and as of the Closing Date confirming and stating the
matters identified in Section 6(a) of this Agreement, any untrue statement or
alleged untrue statement of any material fact contained in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
related preliminary prospectus or preliminary prospectus supplement, or arise
out of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and will reimburse CSFBC for any legal or other expenses
reasonably incurred by CSFBC in connection with investigating or defending any
such loss, claim, damage, liability or action as such expenses are incurred;
provided, however, that the Company will not be liable in any such case to the
extent that any such loss, claim, damage or liability arises out of or is based
upon an untrue statement or alleged untrue statement in or omission or alleged
omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company specifically for use therein, it
being understood and agreed that the only such information furnished by CSFBC
consists of the information described as such in subsection (b) below.
(b) CSFBC will indemnify and hold harmless the Company, its
directors and officers and each person, if any, who controls the Company within
the meaning of Section 15 of the Act, against any losses, claims, damages or
liabilities to which the Company may become subject, under the Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of any material fact contained in the Registration Statement, the
Prospectus, or any amendment or supplement thereto, or any related preliminary
prospectus or preliminary prospectus supplement, or arise out of or are based
upon the omission or the alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to the
Company by CSFBC, specifically for use therein, and will reimburse any legal or
other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or action as
such expenses are incurred, it being understood and agreed that the only such
information furnished by CSFBC consists of the following information in the
Prospectus furnished on behalf of CSFBC: the concession and reallowance figures
appearing in the fourth paragraph under the caption "Underwriting" and the
information contained in the eighth, ninth and tenth paragraphs under the
caption "Underwriting."
(c) Promptly after receipt by an indemnified party under this
Section of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under subsection (a) or (b) above, notify the indemnifying party of the
commencement thereof; but the omission so to notify the indemnifying party will
not relieve it from any liability which it may have to any indemnified party
otherwise than under subsection (a) or (b) above. In case any such action is
brought against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party (who shall not, except with the consent
of the indemnified party, be counsel to the indemnifying party), and after
notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party will not be liable to such
indemnified party under this Section for any legal or other expenses
subsequently incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened action in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party unless such settlement (i) includes
an unconditional release of such indemnified party from all liability on any
claims that are the subject matter of such action and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act by
or on behalf of an indemnified party.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall contribute to
the amount paid or payable by such indemnified party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in
such proportion as is appropriate to reflect the relative benefits received by
the Company on the one hand and CSFBC on the other from the offering of the
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and CSFBC on the other in connection with
the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative
benefits received by the Company on the one hand and CSFBC on the other shall be
deemed to be in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by CSFBC. The relative fault
shall be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or CSFBC
and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount
paid by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any action or
claim which is the subject of this subsection (d). Notwithstanding the
provisions of this subsection (d), CSFBC shall not be required to contribute any
amount in excess of the amount by which the total price at which the Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which CSFBC has otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
(e) The obligations of the Company under this Section shall be
in addition to any liability which the Company may otherwise have and shall
extend, upon the same terms and conditions, to each person, if any, who controls
CSFBC within the meaning of the Act; and the obligations of CSFBC under this
Section shall be in addition to any liability which CSFBC may otherwise have and
shall extend, upon the same terms and conditions, to each director of the
Company, to each officer of the Company who has signed the Registration
Statement and to each person, if any, who controls the Company within the
meaning of the Act.
8. Survival of Certain Representations and Obligations. The respective
indemnities, agreements, representations, warranties and other statements of the
Company or its officers and of CSFBC set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation,
or statement as to the results thereof, made by or on behalf of CSFBC, the
Company or any of their respective representatives, officers or directors or any
controlling person, and will survive delivery of and payment for the Securities.
If for any reason the purchase of the Securities by CSFBC is not consummated,
the Company shall remain responsible for the expenses to be paid or reimbursed
by it pursuant to Section 5(h) and the respective obligations of the Company and
CSFBC pursuant to Section 7 shall remain in effect, and if any Securities have
been purchased hereunder the representations and warranties in Section 2 and the
obligations under Section 5 shall also remain in effect. If the purchase of the
Securities by CSFBC is not consummated for any reason other than solely because
of the occurrence of any event specified in clause (i), (ii)(C), (ii)(D),
(ii)(E) or (ii)(F) of Section 6(c), the Company will reimburse CSFBC for all
out-of-pocket expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with the offering of the Securities.
9. Notices. All communications hereunder will be in writing and, if
sent to CSFBC, will be mailed, delivered or telegraphed and confirmed to Credit
Suisse First Boston Corporation, Eleven Madison Avenue, New York, N.Y.
10010-3629, Attention: Transactions Advisory Group, or, if sent to the Company,
will be mailed,
delivered or telegraphed and confirmed to it at 00000 Xxxxxxxxxx Xxxxx, Xxxxx
000, Xxxxxxx, XX 00000, Attention: Xxxxx X. Xxxxxxx.
10. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 7, and no other
person will have any right or obligation hereunder.
11. Counterparts. This may be executed in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same Agreement.
12. Applicable Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of New York but without giving effect
to applicable principles of conflicts of law to the extent that the application
of the laws of another jurisdiction would be required thereby.
The Company hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in
any suit or proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
If the foregoing is in accordance with CSFBC's understanding of our
agreement, kindly sign and return to the Company one of the counterparts hereof,
whereupon it will become a binding agreement between the Company and CSFBC in
accordance with its terms.
Very truly yours,
SWIFT ENERGY COMPANY
By /s/ XXXXX X. XXXXXXXX, XX.
--------------------------------------
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written.
Acting on behalf of itself.
CREDIT SUISSE FIRST BOSTON CORPORATION
/S/ XXXXXX X. XXXXXXXX, XX.
-----------------------------------------------------
Managing Director
-----------------------------------------------------
ANNEX A
FORM OF EXECUTIVE OFFICER AND DIRECTOR LOCK-UP LETTER
APRIL __, 2002
Swift Energy Company
00000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxx, 00000
Credit Suisse First Boston Corporation
Eleven Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Dear Sirs:
As an inducement to Credit Suisse First Boston Corporation to execute
the Underwriting Agreement, pursuant to which an offering will be made that is
intended to result in an orderly market for the common stock (the "SECURITIES")
of Swift Energy Company, and any successor (by merger or otherwise) thereto,
(the "COMPANY"), the undersigned hereby agrees that from the date hereof and
until 90 days after the public offering date set forth on the final prospectus
supplement used to sell the Securities (the "PUBLIC OFFERING DATE") pursuant to
the Underwriting Agreement, to which you are or expect to become parties, the
undersigned will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, any shares of Securities or securities convertible
into or exchangeable or exercisable for any shares of Securities, enter into a
transaction which would have the same effect, or enter into any swap, hedge or
other arrangement that transfers, in whole or in part, any of the economic
consequences of ownership of the Securities, whether any such aforementioned
transaction is to be settled by delivery of the Securities or such other
securities, in cash or otherwise, or publicly disclose the intention to make any
such offer, sale, pledge or disposition, or to enter into any such transaction,
swap, hedge or other arrangement, without, in each case, the prior written
consent of Credit Suisse First Boston Corporation. In addition, the undersigned
agrees that, without the prior written consent of Credit Suisse First Boston
Corporation, it will not, during the period commencing on the date hereof and
ending 90 days after the Public Offering Date, make any demand for or exercise
any right with respect to, the registration of any Securities or any security
convertible into or exercisable or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market will not be subject to this Agreement. A
transfer of Securities to a family member or trust may be made, provided the
transferee agrees to be bound in writing by the terms of this Agreement.
In furtherance of the foregoing, the Company and its transfer agent and
registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the successors,
heirs, personal representatives and assigns of the undersigned.
Very truly yours,
---------------------------------
