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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

 

CURRENT REPORT

Pursuant to Section 13 or 15(d)

of the Securities Exchange Act of 1934

Date of Report (or Date of Earliest Event Reported): July 26, 2024

 

 

Artemis Merger Sub II LLC

(as successor-in-interest to SilverBow Resources, Inc.)

(Exact name of Registrant as specified in its charter)

 

 

 

Delaware   001-8754   20-3940661
(State or other jurisdiction
of incorporation)		   (Commission
File Number)		   (IRS Employer
Identification No.)

 

920 Memorial City Way, Suite 850
Houston, Texas 77024
(Address of principal executive offices)

(281) 874-2700

(Registrant’s telephone number)

Not Applicable

(Former Name or former address, if changed since last report)

 

 

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions (see General Instruction A.2. below):

 

☐

Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

 

☐

Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

 

☐

Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

 

☐

Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class

  

Trading
Symbol(s)

  

Name of each exchange
on which registered

Common Stock, par value $0.01 per share   SBOW   New York Stock Exchange
Preferred Stock Purchase Rights   None   New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☐

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

 

 

 

Introduction

As previously disclosed, on May 15, 2024, SilverBow Resources, Inc., a Delaware corporation (“SilverBow”), entered into an Agreement and Plan of Merger (the “Merger Agreement”), with Crescent Energy Company, a Delaware corporation (“Crescent”), Artemis Acquisition Holdings Inc., a Delaware corporation and a direct wholly-owned subsidiary of Crescent (“Artemis Holdings”), Artemis Merger Sub Inc., a Delaware corporation and a direct wholly-owned subsidiary of Crescent (“Merger Sub Inc.”), and Artemis Merger Sub II LLC, a Delaware limited liability company and a direct wholly-owned subsidiary of Artemis Holdings (“Merger Sub LLC” and, together with Crescent, Artemis Holdings and Merger Sub Inc., the “Crescent Parties”). On July 30, 2024 (the “Closing Date”), Merger Sub Inc. merged with and into SilverBow (the “Initial Merger”), with SilverBow surviving the Initial Merger as the initial surviving corporation (the “Initial Surviving Corporation”), and the Initial Surviving Corporation then merged with and into Merger Sub LLC (the “Subsequent Merger” and, together with the Initial Merger, the “Mergers”), with Merger Sub LLC surviving the Subsequent Merger (the “Subsequent Surviving Company”) as a direct, wholly-owned subsidiary of Artemis Holdings, at which time the separate corporate existence of SilverBow ended. Promptly following the completion of the Mergers, Artemis Holdings contributed the Subsequent Surviving Company to Crescent Energy OpCo LLC, a Delaware limited liability company (“Crescent OpCo”), of which Crescent is the managing member, which in turn contributed the Subsequent Surviving Company to its wholly-owned subsidiary, Crescent Energy Finance LLC, a Delaware limited liability company (“Crescent Finance” ).

The events described in this Current Report on Form 8-K took place in connection with the consummation of the Mergers.

The foregoing description of the Mergers and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is included as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 1.02

Termination of a Material Definitive Agreement.

In connection with the consummation of the Mergers, on the Closing Date, SilverBow terminated all outstanding lender commitments (as applicable) under the (i) First Amended and Restated Senior Secured Revolving Credit Agreement, dated as of April 19, 2017, among SilverBow, JPMorgan Chase Bank, N.A., as administrative agent and issuing bank, and certain bank lenders thereto (as amended, restated, supplemented or modified from time to time, the “Credit Agreement”) and (ii) the Note Purchase Agreement, dated December 15, 2017, among SilverBow, the holders party thereto and U.S. Bank Trust Company, National Association (as successor-in-interest to U.S. Bank National Association), as agent and collateral agent (as amended, restated, supplemented or modified from time to time, the “Note Purchase Agreement” and, together with the Credit Agreement, the “Financing Agreements”). In connection with the termination of the Financing Agreements, on the Closing Date, all outstanding obligations for principal, interest and fees under the Financing Agreements were paid off in full and all guarantees in respect of and all liens securing any obligations under the Financing Agreements were terminated and released.

 

Item 2.01

Completion of Acquisition or Disposition of Assets.

The information set forth in the Introduction of this Current Report on Form 8-K is incorporated by reference into this Item 2.01.

At the effective time of the Initial Merger (the “Initial Merger Effective Time”), each share of SilverBow common stock, par value $0.01 per share (“SilverBow Common Stock”), issued and outstanding immediately prior to the Initial Merger Effective Time (other than excluded shares held by SilverBow as treasury stock or held by the Crescent Parties, any wholly-owned subsidiary of Crescent (other than Artemis Holdings, Merger Sub Inc. or Merger Sub LLC) or any wholly owned subsidiary of SilverBow), was converted into the right to receive, pursuant to the election procedures set forth in the Merger Agreement, one of the following forms of consideration: (A) a combination of 1.866 shares of Crescent’s Class A common stock, par value $0.0001 per share (the “Crescent Class A Common Stock”), and $15.31 in cash (the “Mixed Consideration”), (B) $38.00 in cash, subject to an aggregate cap of $400,000,000 less the cash paid as Mixed Consideration (the “Cash Election Consideration”), and (C) 3.125 shares of Crescent Class A Common Stock (such consideration, the “Stock Election Consideration” and, together with the Mixed Consideration and the Cash Election Consideration, the “Merger Consideration”).

 

2

In addition, immediately prior to the Initial Merger Effective Time:

 

  (a)

each restricted stock unit award granted under the SilverBow 2016 Equity Incentive Plan or the SilverBow Inducement Plan (collectively, the “SilverBow Incentive Plans”) that was subject only to time-based vesting conditions (each, an “RSU Award”) and that was outstanding as of immediately prior to the Initial Merger Effective Time, whether vested or unvested, by virtue of the occurrence of the Initial Merger, automatically became vested and was canceled and converted into a right to receive (i) a cash payment equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the RSU Award as of immediately prior to the Initial Merger Effective Time multiplied by (B) the Cash Election Consideration and (ii) a number of shares of Crescent Class A Common Stock equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the RSU Award as of immediately prior to the Initial Merger Effective Time multiplied by (B) the Stock Election Consideration, in each case, less applicable withholdings for taxes;

 

  (b)

each restricted stock unit award granted under a SilverBow Incentive Plan that was subject to both time-based vesting and performance-based vesting conditions (each, a “PSU Award”) that was outstanding as of immediately prior to the Initial Merger Effective Time, whether vested or unvested, by virtue of the occurrence of the Initial Merger, automatically became fully vested and was canceled and converted into a right to receive (i) a cash payment equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the PSU Award as of immediately prior to the Initial Merger Effective Time (assuming that any performance-based vesting conditions applicable to such PSU Award were achieved at the maximum level of performance) multiplied by (B) the Cash Election Consideration and (ii) a number of shares of Crescent Class A Common Stock equal to the product of (A) 50% of the number of shares of SilverBow Common Stock subject to the PSU Award as of immediately prior to the Initial Merger Effective Time (assuming that any performance-based vesting conditions applicable to such PSU Award were achieved at the maximum level of performance) multiplied by (B) the Stock Election Consideration, in each case, less applicable withholdings for taxes; and

 

  (c)

each option to purchase shares of SilverBow Common Stock granted under a SilverBow Incentive Plan (each, an “Option”) that was outstanding immediately prior to the Initial Merger Effective Time and that had an exercise price per share of SilverBow Common Stock subject to such Option that was less than the Cash Election Consideration, whether vested or unvested, by virtue of the occurrence of the Initial Merger, automatically became fully vested and was canceled and converted into a right to receive a cash payment equal to the product of (i) the number of shares of SilverBow Common Stock subject to the Option as of immediately prior to the Initial Merger Effective Time multiplied by (ii) the difference between the Cash Election Consideration and the exercise price per share of SilverBow Common Stock subject to such Option, less applicable withholdings for taxes. Each Option that had an exercise price per share of SilverBow Common Stock subject to such Option that equaled or exceeded the Cash Election Consideration was canceled for no consideration.

The issuance of shares of Crescent Class A Common Stock pursuant to the terms of the Merger Agreement was registered under the Securities Act of 1933, as amended, pursuant to Crescent’s registration statement on Form S-4, as amended (File No. 333-280162), which was declared effective by the SEC on June 27, 2024. The joint proxy statement/prospectus (the “Joint Proxy Statement/Prospectus”) included in Crescent’s registration statement contains additional information about the Mergers.

The foregoing description of the Mergers and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Merger Agreement, a copy of which is included as Exhibit 2.1 to this Current Report on Form 8-K and incorporated herein by reference.

 

Item 3.01

Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

The information set forth in the Introduction and Item 2.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.01.

 

3

Prior to the consummation of the Mergers, shares of SilverBow Common Stock were listed and traded on the New York Stock Exchange (the “NYSE”) under the trading symbol “SBOW.” In connection with the consummation of the Mergers, SilverBow notified the NYSE that the Mergers had been completed and requested that the NYSE delist the shares of SilverBow Common Stock. Upon SilverBow’s request, the NYSE filed a notification of removal from listing on Form 25 with the SEC with respect to the delisting and the deregistration of shares of SilverBow Common Stock under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). The SilverBow Common Stock ceased being traded prior to the opening of the market on July 30, 2024, and is no longer listed on NYSE.

In addition, the Subsequent Surviving Company, as successor-in-interest to SilverBow, intends to file with the SEC a Form 15 requesting that the reporting obligations of SilverBow under Sections 13 and 15(d) of the Exchange Act be suspended and that the registration of shares of SilverBow Common Stock under Section 12(g) of the Exchange Act be terminated.

 

Item 3.03

Material Modification to Rights of Security Holders.

The information set forth in the Introduction, Item 2.01, Item 3.01, Item 5.01, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 3.03.

At the Initial Merger Effective Time, each holder of shares of SilverBow Common Stock outstanding immediately prior to the Initial Merger Effective Time ceased to have any rights as a stockholder of SilverBow other than the right to receive the Merger Consideration pursuant to the Merger Agreement.

 

Item 5.01

Changes in Control of Registrant.

The information set forth in the Introduction, Item 2.01, Item 3.01, Item 3.03, Item 5.02 and Item 5.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.01.

As a result of the consummation of the Initial Merger, at the Initial Merger Effective Time, SilverBow became a wholly-owned subsidiary of Crescent. Immediately following the Initial Merger, SilverBow merged with and into Merger Sub LLC, with Merger Sub LLC surviving the merger as a direct, wholly-owned subsidiary of Artemis Holdings. Promptly following the completion of the Mergers, Artemis Holdings contributed the Subsequent Surviving Company to OpCo, of which Crescent is the managing member, which in turn contributed the Subsequent Surviving Company to its wholly-owned subsidiary, Crescent Finance.

 

Item 5.02.

Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Pursuant to the Merger Agreement, effective as of the Initial Merger Effective Time, each member of the board of directors and each officer of SilverBow as of immediately prior to the Initial Merger Effective Time ceased his or her respective service as a director or officer of SilverBow. Such cessations of service were not related to any disagreement with SilverBow on any matter related to SilverBow’s operations, policies or practices.

On July 26, 2024, SilverBow entered into transaction bonus agreements with each of Sean C. Woolverton, Christopher M. Abundis and Steven W. Adam (collectively, the “Transaction Bonus Agreements”) pursuant to which Messrs. Woolverton, Abundis and Adam will receive a cash bonus in the amount of $1,000,000, $650,000 and $700,000, respectively, following the closing of the transactions contemplated by the Merger Agreement. The Transaction Bonus Agreements also extend the post-employment non-compete period under Mr. Woolverton’s employment agreement from 24 months to 30 months, under Mr. Abundis’ employment agreement from 18 months to 27 months and under Mr. Adam’s employment agreement from 18 months to 24 months. The foregoing description of the Transaction Bonus Agreements does not purport to be complete and is subject to, and qualified in its entirety by, the full text of the form of the Transaction Bonus Agreement, a copy of which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated into this Item 5.02 by reference.

 

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Pursuant to the Merger Agreement, at the effective time of the Subsequent Merger (the “Subsequent Merger Effective Time”), the directors and officers of Merger Sub LLC became the directors and officers of the Subsequent Surviving Company.

 

Item 5.03

Amendments to Certificate of Incorporation or Bylaws; Change in Fiscal Year.

In connection with the consummation of the Initial Merger, the certificate of incorporation and bylaws of the Initial Surviving Corporation were each amended and restated in their entirety. The certificate of incorporation and bylaws, each as amended and restated, of the Initial Surviving Corporation are attached as Exhibits 3.1 and 3.2, respectively, to this Current Report on Form 8-K.

At the Subsequent Merger Effective Time, the certificate of formation and limited liability company agreement of Merger Sub LLC as in effect immediately prior to the Subsequent Merger Effective Time became the certificate of formation and limited liability company agreement of the Subsequent Surviving Company. The certificate of formation and limited liability company agreement of the Subsequent Surviving Company are attached as Exhibits 3.3 and 3.4, respectively, to this Current Report on Form 8-K.

 

Item 5.07

Submission of Matters to a Vote of Security Holders.

On July 29, 2024, SilverBow held a special meeting of stockholders (the “Special Meeting”) to consider certain proposals related to the Mergers.

As of June 28, 2024, the record date for the Special Meeting, there were 25,539,615 shares of SilverBow Common Stock outstanding, each of which was entitled to one vote for each proposal at the Special Meeting. At the Special Meeting, a total of 17,049,736 shares of SilverBow Common Stock, representing approximately 66.75% of the outstanding shares entitled to vote, were present virtually or by proxy, constituting a quorum to conduct business.

At the Special Meeting, the following proposals were considered:

(1) a proposal to adopt the Merger Agreement (the “Merger Proposal”); and

(2) a proposal to approve, on a non-binding, advisory basis, certain compensation that may be paid or become payable to SilverBow’s named executive officers that is based on or otherwise relates to the mergers (the “Advisory Compensation Proposal”).

The final voting results for each proposal are described below. For more information on each of these proposals, see the definitive Joint Proxy Statement/Prospectus filed with the SEC on June 28, 2024.

 

  1.

SilverBow’s stockholders approved the Merger Proposal by the following vote:

 

For

  

Against

  

Abstain

  

Broker Non-Votes

16,948,630

   65,372   35,734   0

 

  2.

SilverBow’s stockholders voted against the approval of the Advisory Compensation Proposal by the following vote:

 

For

  

Against

  

Abstain

  

Broker Non-Votes

5,190,476

   11,786,372   72,888   0

 

5

Item 9.01

Financial Statements and Exhibits.

(d) Exhibits

 

Exhibit

Number

   

Description

2.1    Agreement and Plan of Merger, dated as of May 15, 2024, by and among SilverBow and the Crescent Parties (incorporated by reference to Exhibit 2.1 to SilverBow Resources, Inc.’s Current Report on Form 8-K (File No. 001-08754) filed with the SEC on May 16, 2024).
3.1    Amended and Restated Certificate of Incorporation of SilverBow Resources, Inc.
3.2    Fourth Amended and Restated Bylaws of SilverBow Resources, Inc.
3.3    Certificate of Formation of Artemis Merger Sub II LLC.
3.4    Limited Liability Company Agreement of Artemis Merger Sub II LLC.
10.1    Form of Transaction Bonus Agreement
104    Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

6

SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

ARTEMIS MERGER SUB II LLC
(as successor-in-interest to SilverBow Resources, Inc.)
By:  

/s/ Brandi Kendall

Name:   Brandi Kendall
Title:   Senior Vice President

Date: July 30, 2024

 

7

Exhibit 3.1

AMENDED AND RESTATED CERTIFICATE OF INCORPORATION

OF

SILVERBOW RESOURCES, INC.

July 30, 2024

SilverBow Resources, Inc., a corporation organized and existing under the laws of the State of Delaware, pursuant to Sections 242 and 245 of the General Corporation Law of the State of Delaware, as it may be amended (the “DGCL”), which was originally incorporated under the name Swift Energy Company and the original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on April 22, 2016, hereby certifies as follows:

FIRST: The name of this corporation is SilverBow Resources, Inc. (the “Corporation”).

SECOND: The address of the registered office of the Corporation in the State of Delaware is c/o Maples Fiduciary Services (Delaware) Inc., 4001 Kennett Pike, Suite 302, County of New Castle, Wilmington, Delaware 19807. The name of the Corporation’s registered agent at such address is Maples Fiduciary Services (Delaware) Inc.

THIRD: The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL.

FOURTH: The total number of shares of all classes of stock which the Corporation shall have authority to issue is 1,000 shares of common stock, par value $.01 per share, amounting in the aggregate to $10.00.

FIFTH: The Board of Directors shall have the power to adopt, amend or repeal the bylaws of the Corporation.

SIXTH: Election of directors need not be by written ballot unless the bylaws of the Corporation so provide.

SEVENTH: The Corporation expressly elects not to be governed by Section 203 of the DGCL.

EIGHTH: A. The Corporation (and any successor to the Corporation by merger or otherwise) shall indemnify and hold harmless, to the fullest extent permitted by applicable law as it presently exists or may hereafter be amended, any person (a “Covered Person”) who was or is made or is threatened to be made a party or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “Proceeding”) (other than a Proceeding by or in the right of the Corporation), by reason of the fact that he or she, or a person for whom he or she is the legal representative, is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership (limited or general), joint venture, trust, enterprise or nonprofit entity, including service with respect to employee benefit plans, against all liability and loss suffered and expenses (including attorneys’ fees) reasonably incurred by such Covered Person in connection with such action, suit or proceeding if the Covered Person acted in good faith and in a manner the Covered Person reasonably believed

to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the Covered Person’s conduct was unlawful. Notwithstanding the preceding sentence, except as otherwise provided in Clause (C) of this ARTICLE EIGHTH, the Corporation shall be required to indemnify a Covered Person in connection with a Proceeding (or part thereof) commenced by such Covered Person only if the commencement of such Proceeding (or part thereof) by the Covered Person was authorized in the specific case by the Board of Directors. On no account shall any amendment to applicable law as it presently exists or may hereafter be amended be deemed to limit or prohibit the right to indemnification in this ARTICLE EIGHTH for past actions or omissions of any Covered Person insofar as such amendment limits or prohibits the indemnification rights that said law permitted the Corporation to provide prior to such amendment. Persons who are not directors or officers of the Corporation and are not serving at the request of the Corporation may be similarly indemnified in respect of such service to the extent authorized at any time by the Board of Directors.

B. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by a Covered Person in defending any Proceeding in advance of its final disposition; provided, however, that, to the extent required by law, such payment of expenses in advance of the final disposition of the Proceeding shall be made only upon receipt of an undertaking by the Covered Person to repay all amounts advanced if it should be finally determined by a court of competent jurisdiction that the Covered Person is not entitled to be indemnified under this ARTICLE EIGHTH or otherwise.

C. If a claim for indemnification under this ARTICLE EIGHTH (following the final disposition of such Proceeding) is not paid in full within sixty (60) days after the Corporation has received a claim therefor by the Covered Person, or if a claim for any advancement of expenses under this ARTICLE EIGHTH is not paid in full within thirty (30) days after the Corporation has received a statement or statements requesting such amounts to be advanced, the Covered Person shall thereupon (but not before) be entitled to file suit to recover the unpaid amount of such claim. If successful in whole or in part, the Covered Person shall be entitled to be paid the expense of prosecuting such claim to the fullest extent permitted by law. In any such action, the Corporation shall have the burden of proving that the Covered Person is not entitled to the requested indemnification or advancement of expenses under applicable law.

D. The rights conferred on any Covered Person by this ARTICLE EIGHTH shall not be exclusive of any other rights which such Covered Person may have or hereafter acquire under any statute, provision of this Amended and Restated Certificate of Incorporation, the bylaws of the Corporation, agreement, vote of stockholders or disinterested directors or otherwise.

E. This ARTICLE EIGHTH shall not limit the right of the Corporation, to the extent and in the manner permitted by law, to indemnify and to advance expenses to persons other than Covered Persons when and as authorized by appropriate corporate action.

F. Any Covered Person entitled to indemnification and/or advancement of expenses, in each case pursuant to this ARTICLE EIGHTH, may have certain rights to indemnification, advancement and/or insurance provided by one or more persons with whom or which such Covered Person may be associated. The Corporation hereby acknowledges and agrees that (i) the Corporation shall be the indemnitor of first resort with respect to any Proceeding, expense, liability

 

2

or matter that is the subject of this ARTICLE EIGHTH, (ii) the Corporation shall be primarily liable for all such obligations and any indemnification afforded to a Covered Person in respect of a Proceeding, expense, liability or matter that is the subject of this ARTICLE EIGHTH, whether created by law, organizational or constituent documents, contract or otherwise, (iii) any obligation of any persons with whom or which a Covered Person may be associated to indemnify such Covered Person and/or advance expenses or liabilities to such Covered Person in respect of any Proceeding shall be secondary to the obligations of the Corporation hereunder, (iv) the Corporation shall be required to indemnify each Covered Person and advance expenses to each Covered Person hereunder to the fullest extent provided herein without regard to any rights such Covered Person may have against any other person with whom or which such Covered Person may be associated or insurer of any such person, and (v) the Corporation irrevocably waives, relinquishes and releases any other person with whom or which a Covered Person may be associated from any claim of contribution, subrogation or any other recovery of any kind in respect of amounts paid by the Corporation hereunder.

G. Any right to indemnification or to advancement of expenses of any Covered Person arising hereunder shall not be eliminated or impaired by an amendment to or repeal of this Amended and Restated Certificate of Incorporation after the occurrence of the act or omission that is the subject of the civil, criminal, administrative or investigative action, suit or Proceeding for which indemnification or advancement of expenses is sought.

NINTH: The Corporation reserves the right to amend this Amended and Restated Certificate of Incorporation in any manner permitted by the DGCL, and all rights and powers conferred herein on stockholders, directors and officers, if any, are subject to this reserved power.

TENTH: This Amended and Restated Certificate of Incorporation shall become effective immediately upon filing with the Secretary of the State of the State of Delaware.

[Remainder of Page Intentionally Left Blank]

 

3

IN WITNESS WHEREOF, SilverBow Resources, Inc. has caused this Amended and Restated Certificate of Incorporation to be executed by its duly authorized officer this as of the date first set forth above.

 

SILVERBOW RESOURCES, INC.
By:   /s/ Brandi Kendall
  Name: Brandi Kendall
  Title: Senior Vice President

 

 

[Amended and Restated Certificate of Incorporation – SilverBow Resources, Inc.]

Exhibit 3.2

SILVERBOW RESOURCES, INC.

FOURTH AMENDED AND RESTATED BYLAWS

(Adopted as of July 30, 2024)

ARTICLE I

MEETINGS OF STOCKHOLDERS

Section 1. Place of Meeting. Meetings of the stockholders of SilverBow Resources, Inc. (the “Corporation”) shall be held at such place either within or without the State of Delaware as the Board of Directors may determine.

Section 2. Annual and Special Meetings. Annual meetings of stockholders shall be held, at a date, time and place fixed by the Board of Directors and stated in the notice of meeting, to elect a Board of Directors and to transact such other business as may properly come before the meeting. Special meetings of the stockholders of the Corporation may be called only by the Chief Executive Officer of the Corporation or by the Board of Directors pursuant to a resolution approved by the Board of Directors.

Section 3. Notice. Except as otherwise provided by law, at least 10 and not more than 60 days before each meeting of stockholders, written notice of the time, date and place of the meeting, and, in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be given to each stockholder.

Section 4. Quorum. At any meeting of stockholders, the holders of record, present in person or by proxy, of a majority of the Corporation’s issued and outstanding capital stock shall constitute a quorum for the transaction of business, except as otherwise provided by law. In the absence of a quorum, any officer entitled to preside at or to act as secretary of the meeting shall have power to adjourn the meeting from time to time until a quorum is present.

Section 5. Voting. Except as otherwise provided by law, all matters submitted to a meeting of stockholders shall be decided by vote of the holders of record, present in person or by proxy, of a majority of the Corporation’s issued and outstanding capital stock.

ARTICLE II

DIRECTORS

Section 1. Number, Election and Removal of Directors. The Board of Directors of the Corporation shall consist of such number of directors as shall from time to time be fixed exclusively by resolution of the Board of Directors. The Directors shall be elected by stockholders at their annual meeting. Vacancies and newly created directorships resulting from any increase in the number of Directors may be filled by a majority of the Directors then in office, although less than a quorum, or by the sole remaining Director or by the stockholders. A Director may be removed with or without cause by the stockholders.

Section 2. Meetings. Regular meetings of the Board of Directors shall be held at such times and places as may from time to time be fixed by the Board of Directors or as may be specified in a notice of meeting. Special meetings of the Board of Directors may be held at any time upon the call of the Chairman of the Board or the Chief Executive Officer.

Section 3. Notice. Notice need not be given of regular meetings of the Board of Directors. At least one business day before each special meeting of the Board of Directors, written or oral (either in person or by telephone), notice of the time, date and place of the meeting and the purpose or purposes for which the meeting is called, shall be given to each Director; provided that notice of any meeting need not be given to any Director who shall be present at such meeting (in person or by telephone) or who shall waive notice thereof in writing either before or after such meeting.

Section 4. Quorum. A majority of the total number of Directors shall constitute a quorum for the transaction of business. If a quorum is not present at any meeting of the Board of Directors, the Directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until such a quorum is present. Except as otherwise provided by law, the Certificate of Incorporation of the Corporation, these Bylaws or any contract or agreement to which the Corporation is a party, the act of a majority of the Directors present at any meeting at which there is a quorum shall be the act of the Board of Directors.

Section 5. Committees. The Board of Directors may, by resolution adopted by a majority of the whole Board, designate one or more committees, including, without limitation, an Executive Committee, to have and exercise such power and authority as the Board of Directors shall specify. In the absence or disqualification of a member of a committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he or they constitute a quorum, may unanimously appoint another Director to act as the absent or disqualified member.

ARTICLE III

OFFICERS

Section 1. Officers. The officers of the Corporation shall consist of a Chief Executive Officer, a Chief Financial Officer, President, Vice Presidents, Secretary, Treasurer and such other additional officers with such titles as the Board of Directors shall determine, all of which shall be chosen by and shall serve at the pleasure of the Board of Directors. Such officers shall have the usual powers and shall perform all the usual duties incident to their respective offices. All officers shall be subject to the supervision and direction of the Board of Directors. The authority, duties or responsibilities of any officer of the Corporation may be suspended by the Chief Executive Officer with or without cause. Any officer elected or appointed by the Board of Directors may be removed by the Board of Directors with or without cause.

 

2

Section 2. Removal, Resignation and Vacancies. Any officer of the Corporation may be removed, with or without cause, by the Board of Directors or by a duly authorized officer, without prejudice to the rights, if any, of such officer under any contract to which it is a party. Any officer may resign at any time upon notice given in writing or by electronic transmission to the Corporation, without prejudice to the rights, if any, of the Corporation under any contract to which such officer is a party. If any vacancy occurs in any office of the Corporation, the Board of Directors may elect a successor to fill such vacancy for the remainder of the unexpired term and until a successor shall have been duly elected and qualified.

Section 3. Corporate Contracts and Instruments. Except as otherwise provided in these Bylaws, the Board of Directors may determine the method, and designate (or authorize officers of the Corporation to designate) the person or persons who shall have authority to enter into any contract or execute any instrument in the name of and on behalf of the Corporation. Such authority may be general or confined to specific instances. Unless so authorized, or within the power incident to a person’s office or other position with the Corporation, no person shall have any power or authority to bind the Corporation by any contract or engagement or to pledge its credit or to render it liable for any purpose or for any amount.

Section 4. Signature Authority. Unless otherwise determined by the Board of Directors or otherwise provided by law or these Bylaws, contracts, evidences of indebtedness and other instruments or documents of the Corporation may be executed, signed or endorsed: (i) by the Chief Executive Officer or the President; or (ii) by the Chief Financial Officer, any Vice President, Treasurer, Secretary or Controller, in each case only with regard to such instruments or documents that pertain to or relate to such person’s duties or business functions.

Section 5. Delegation. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers or agents, notwithstanding the foregoing provisions of this Article III.

ARTICLE IV

INDEMNIFICATION

To the fullest extent permitted by the Delaware General Corporation Law, the corporation shall indemnify any current or former Director or officer of the Corporation and may, at the discretion of the Board of Directors, indemnify any current or former employee or agent of the Corporation against all expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with any threatened, pending or completed action, suit or proceeding brought by or in the right of the Corporation or otherwise, to which he or she was or is a party by reason of his or her current or former position with the Corporation or by reason of the fact that he or she is or was serving, at the request of the Corporation, as a director, officer, partner, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise.

 

3

ARTICLE V

CAPITAL STOCK

The shares of the Corporation shall be represented by certificates; provided, however, that the Board of Directors may provide by resolution or resolutions that some or all of any or all classes or series of stock shall be uncertificated shares. Any such resolution shall not apply to shares represented by a certificate until such certificate is surrendered to the Corporation. Every holder of stock represented by certificates shall be entitled to have a certificate signed by or in the name of the Corporation by any two authorized officers of the Corporation, including, without limitation, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer, the Controller, the Secretary, or an Assistant Treasurer or Assistant Secretary certifying the number of shares owned by such holder in the Corporation. Any or all such signatures may be facsimiles. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to be such officer, transfer agent or registrar before such certificate is issued, it may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar at the date of issue.

ARTICLE VI

GENERAL PROVISIONS

Section 1. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board of Directors.

Section 2. Corporate Books. The books of the corporation may be kept at such place within or outside the State of Delaware as the Board of Directors may from time to time determine.

 

4

Exhibit 3.3

CERTIFICATE OF FORMATION

OF

ARTEMIS MERGER SUB II LLC

This Certificate of Formation, dated April 29, 2024, has been duly executed and is filed pursuant to Sections 18-201 and 18-204 of the Delaware Limited Liability Company Act (the “Act”) to form a limited liability company (the “Company”) under the Act.

1. Name. The name of the Company is:

Artemis Merger Sub II LLC

2. Registered Office; Registered Agent. The address of the registered office required to be maintained by Section 18-104 of the Act is:

Maples Fiduciary Services (Delaware) Inc.

4001 Kennett Pike, Suite 302

Wilmington, Delaware 19807

The name and the address of the registered agent for service of process required to be maintained by Section 18-104 of the Act are:

Maples Fiduciary Services (Delaware) Inc.

4001 Kennett Pike, Suite 302

Wilmington, Delaware 19807

[Signature page follows.]

IN WITNESS WHEREOF, the undersigned has duly executed this Certificate of Formation as of the date first written above.

 

By:   /s/ Bo Shi
Name:   Bo Shi
Title:  

Authorized Person

 

 

SIGNATURE PAGE TO

CERTIFICATE OF FORMATION OF

ARTEMIS MERGER SUB II LLC

Exhibit 3.4

LIMITED LIABILITY COMPANY AGREEMENT

OF

ARTEMIS MERGER SUB II LLC

A Delaware Limited Liability Company

This LIMITED LIABILITY COMPANY AGREEMENT of Artemis Merger Sub II LLC (this “Agreement”), effective as of April 29, 2024 is adopted, executed and agreed to by the Member (as defined below).

1. Formation. Artemis Merger Sub II LLC (the “Company”) has been formed as a Delaware limited liability company under and pursuant to the Delaware Limited Liability Company Act (the “Act”).

2. Term. The Company shall have a perpetual existence.

3. Purposes. The purposes of the Company are to carry on any lawful business, purpose or activity for which limited liability companies may be formed under the Act.

4. Sole Member. Artemis Acquisition Holdings Inc., a Delaware limited liability company, is the initial sole member of the Company (the “Member”).

5. Contributions. The Member has made an initial contribution to the capital of the Company, as reflected in the Company’s books and records. Without creating any rights in favor of any third party, the Member may, from time to time, make additional contributions of cash or property to the capital of the Company, but shall have no obligation to do so.

6. Taxes. The Member or an affiliate of the Member shall prepare and timely file (on behalf of the Company) all state and local tax returns, if any, required to be filed by the Company. The Company and the Member acknowledge that for federal income tax purposes, the Company will be disregarded as an entity separate from the Member pursuant to Treasury Regulation § 301.7701-3 as long as all of the member interests in the Company are owned by the Member.

7. Allocations and Distributions. The Member shall be entitled (a) to all allocations of profits and losses of the Company, (b) to receive all distributions (including, without limitation, liquidating distributions) made by the Company, and (c) to enjoy all other rights, benefits and interests in the Company.

8. Management. The management of the Company is fully reserved to the Member, and the Company shall not have “managers,” as that term is used in the Act. The Member may appoint one or more officers as it deems necessary, desirable or appropriate, with such authority and upon such terms and conditions as the Member deems appropriate. Any such officer shall serve at the pleasure of the Member and may be removed, with or without cause, by the Member.

9. Dissolution. The Company shall dissolve and its affairs shall be wound up at such time, if any, as the Member may elect. No other event (including, without limitation, an event described in Section 18-801(4) of the Act) will cause the Company to dissolve.

10. Liability of Member. The Member shall not have any liability for the obligations or liabilities of the Company except to the extent provided for in the Act.

11. Exculpation and Indemnity. The Member or officers of the Company shall not be liable or accountable in damages or otherwise to the Company for any act or omission done or omitted by the Member or officers of the Company in good faith, unless such act or omission constitutes gross negligence, willful misconduct, or a breach of this Agreement on the part of the Member or officers of the Company. The Company shall indemnify the Member or officers of the Company to the fullest extent permitted by law against any loss, liability, damage, judgment, demand, claim, cost or expense incurred by or asserted against the Member or officers of the Company (including, without limitation, reasonable attorneys’ fees and disbursements incurred in the defense thereof) arising out of any act or omission of the Member or officers in connection with the Company, unless such act or omission constitutes bad faith, gross negligence or willful misconduct on the part of the Member or officers of the Company.

12. Governing Law. This Agreement is governed by and shall be construed in accordance with the laws of the State of Delaware without regard to the principle of conflict-of-laws.

13. Amendments. This Agreement may be modified, altered, supplemented or amended at any time by a written agreement executed and delivered by the Member.

[Signature page follows]

IN WITNESS WHEREOF, the Member has executed this Agreement as of the date written first above.

 

SOLE MEMBER:
ARTEMIS ACQUISITION HOLDINGS INC.
By:   /s/ Bo Shi
Name:   Bo Shi
Title:   Senior Vice President

 

 

SIGNATURE PAGE TO

LIMITED LIABILITY COMPANY AGREEMENT OF

ARTEMIS MERGER SUB II LLC

Exhibit 10.1

 

LOGO

July 26, 2024

[NAME]

By E-Mail

RE: Transaction Bonus

Dear [________]:

In connection with the transactions contemplated by that certain Agreement and Plan of Merger with Crescent Energy Company (“Crescent”), Artemis Acquisition Holdings Inc., Artemis Merger Sub Inc., and Artemis Merger Sub II LLC, dated May 15, 2024 (the “Merger Agreement”) pursuant to which SilverBow Resources, Inc. (“SilverBow”) is expected to become an indirect subsidiary of Crescent (the “Merger”), SilverBow and you each agree as follows:

 

1.

Transaction Bonus. In recognition of your contributions in connection with the Merger, you will be eligible to receive a one-time transaction bonus of $[____] (the “Transaction Bonus”), subject to your continued employment with SilverBow and its affiliates through the Closing Date (as defined in the Merger Agreement) and your compliance with the terms of this letter agreement. The Transaction Bonus, less applicable withholdings and deductions, will be paid in a cash lump sum as soon as reasonably practicable, and in all events within 60 days, following the Closing Date.

 

2.

Non-Competition Extension. In the course of your continued employment with SilverBow, you will have access to, and receive, confidential information of SilverBow or its direct and indirect subsidiaries (collectively, the “Company Group”). As a condition of (i) payment to you of the Transaction Bonus as well as other consideration that you will receive in connection with the Merger, including the accelerated vesting and settlement of your outstanding performance-based restricted stock units (each, a “PSU Award”), and (ii) SilverBow’s agreement to continue to provide you with confidential information , which is of great value to the Company Group and is a substantial basis and foundation upon which the Company Group’s business is predicated, and to further protect the Company Group’s and Crescent’s legitimate business interests, you hereby acknowledge and agree that: (x) Section 9(f)(iv) of that certain Employment Agreement between you and the Company, dated effective as of [____], as amended (the “Employment Agreement”) is hereby amended to provide that the “Non-Compete Period” as defined therein shall instead run for the [_] month period following the Termination Date (as defined in the Employment Agreement); and (y) effective as of the closing of the Merger, the “Company Group,” as such term is used and applied in Section 9 of the Employment Agreement, shall mean Crescent and its direct and indirect subsidiaries (including SilverBow).

 

1

On April 23, 2024, the Federal Trade Commission issued the Non-Compete Clause Rule as 16 CFR Part 910 (the “Final Rule”). Under the Final Rule, you acknowledge and agree that you are a senior executive of SilverBow who was in a policy-making position and who received from SilverBow total annual compensation of at least $151,164 in the preceding year. In addition, you acknowledge and agree that this letter agreement was entered into pursuant to a bona fide sale of SilverBow, for which you received material consideration, including the Transaction Bonus.

You acknowledge and agree that if you breach your obligations under Section 9 of the Employment Agreement (including, without limitation, the non-competition obligations therein, as amended hereby), you will, at the request of SilverBow, repay any amounts previously paid in respect of the Transaction Bonus as well as all consideration received upon the settlement of the PSU awards following the Merger, including the proceeds received upon any subsequent sale of shares of Crescent Energy Company (each determined on an after-tax basis by SilverBow in its good faith discretion). You agree that such repayment is not the exclusive remedy for any breach available to SilverBow, any member of the Company Group, Crescent, or any of their respective affiliates, but is in addition to all other remedies available at law and equity, including as set forth in Sections 6(h), and 9(d) of the Employment Agreement.

 

3.

No Effect on Severance and Other Benefits. This letter agreement will not affect your eligibility or entitlement to receive any benefits payable to you under any severance, change of control or similar plan, policy or agreement with SilverBow or any of its subsidiaries.

 

4.

Other Rights and Agreements. This letter agreement does not create any employment rights not specifically set forth herein with respect to you. Your employment remains at-will and can be terminated by SilverBow or its applicable affiliate at any time and for any reason, with or without Cause. This letter agreement (and, as referenced herein, the Employment Agreement) contains the entire understanding of SilverBow and you with respect to the subject matter hereof; provided, however, this letter agreement complements and is in addition to (and does not supersede or replace) any other obligation you have to SilverBow, any other member of the Company Group, Crescent, or any of their respective affiliates with respect to non-competition, non-solicitation, confidentiality or non-disclosure (whether such obligations arise by contract, statute, common law, or otherwise).

 

5.

Amendment. This letter agreement may be amended or revised only by written agreement signed by an authorized officer of SilverBow and you.

 

6.

Counterparts. This letter agreement may be (a) executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement, and (b) executed and delivered by facsimile or other electronic transmission with the same effect as if a manually signed original were personally delivered.

 

2

7.

Applicable Law; Jurisdiction. This letter agreement shall be construed and enforced in accordance with the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof. With respect to any claim or dispute related to or arising under this letter agreement, the parties hereby consent to the arbitration provisions of Section 10 of the Employment Agreement and recognize and agree that should any resort to a court be necessary and permitted under this agreement, then they consent to the exclusive jurisdiction, forum and venue of the state and federal courts located in Houston, Harris County, Texas.

 

Sincerely,
SILVERBOW RESOURCES, INC.
By:    
Name:  
Title:  

 

Agreed and accepted:

 

[Name]

 

3

v3.24.2
Document and Entity Information
Jul. 26, 2024
Document And Entity Information [Line Items]  
Amendment Flag false
Entity Central Index Key 0000351817
Current Fiscal Year End Date --12-31
Document Type 8-K
Document Period End Date Jul. 26, 2024
Entity Registrant Name SilverBow Resources, Inc.
Entity Incorporation State Country Code DE
Entity File Number 001-8754
Entity Tax Identification Number 20-3940661
Entity Address, Address Line One 920 Memorial City Way
Entity Address, Address Line Two Suite 850
Entity Address, City or Town Houston
Entity Address, State or Province TX
Entity Address, Postal Zip Code 77024
City Area Code (281)
Local Phone Number 874-2700
Written Communications false
Soliciting Material false
Pre Commencement Tender Offer false
Pre Commencement Issuer Tender Offer false
Entity Emerging Growth Company false
Common Stock [Member]  
Document And Entity Information [Line Items]  
Security 12b Title Common Stock, par value $0.01 per share
Trading Symbol SBOW
Security Exchange Name NYSE
Preferred Stock [Member]  
Document And Entity Information [Line Items]  
Security 12b Title Preferred Stock Purchase Rights
Security Exchange Name NYSE
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