Exhibit 3.3
RESTATED ARTICLES OF INCORPORATION
OF
SWIFT ENERGY COMPANY
a Texas corporation
SWIFT ENERGY COMPANY, pursuant to the provisions of Article 4.07 of the
Texas Business Corporation Act ("TBCA"), hereby adopts these Restated Articles
of Incorporation which accurately copy the Articles of Incorporation and all
amendments thereto that are in effect to date and contain no other change in any
provision thereof. These Restated Articles of Incorporation were duly adopted by
the Board of Directors of the Corporation on December 16, 2005.
ARTICLE I
The name of this corporation is Swift Energy Company (the "Corporation").
ARTICLE II
The period of the Corporation's duration is perpetual.
ARTICLE III
The Corporation is organized for the purpose of engaging in any lawful act,
activity and/or business for which corporations may be organized under the Texas
Business Corporation Act.
ARTICLE IV
The aggregate number of shares of all classes of stock which the
Corporation shall have authority to issue is 90 million shares, consisting of
(a) 85 million shares of Common Stock, par value $.01 per share ("Common
Stock"), and (b) 5 million shares of Preferred Stock, par value $.01 per share
("Preferred Stock").
The Board of Directors shall issue Preferred Stock from time to time at its
option for such consideration and pursuant to such terms and conditions as it
may decide. The Board of Directors shall determine the relative rights and
preferences of the Preferred Stock and Common Stock and may, at its option,
divide such Preferred Stock into series and determine variations, if any,
between any series so established.
ARTICLE V
No shareholder shall have a preemptive right to acquire any shares or
securities of any class, whether now or hereafter authorized, which may at any
time be issued, sold or offered for sale by the Corporation.
ARTICLE VI
The address of the Corporation's registered office is 16825 Northchase
Drive, Suite 400, Houston, Texas 77060, and the name of its registered agent at
such address is Terry E. Swift.
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ARTICLE VII
The number of directors of this Corporation shall be not less than three
(3) nor more than fifteen (15), the exact number to be fixed from time to time
in the manner provided in the Bylaws of the Corporation. The number of directors
constituting the existing Board of Directors is nine (9), and the names and
addresses of such persons who are to serve as directors until each of his/her
successors is elected and qualified are:
Name Address
Henry C. Montgomery 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Clyde W. Smith, Jr. 16825 Northchase Drive, Suite 400
Houston, Texas 77060
A. Earl Swift 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Terry E. Swift 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Deanna L. Cannon 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Raymond E. Galvin 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Douglas J. Lanier 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Greg Matiuk 16825 Northchase Drive, Suite 400
Houston, Texas 77060
Bruce H. Vincent 16825 Northchase Drive, Suite 400
Houston, Texas 77060
ARTICLE VIII
The right to cumulate votes in the election of directors is hereby
expressly denied.
ARTICLE IX
Except as may otherwise be provided in the bylaws, the Board of Directors
of this Corporation is expressly authorized to alter, amend, or repeal the
bylaws or to adopt new bylaws of this Corporation without any action on the part
of the shareholders; but the bylaws made by the directors and the powers so
conferred may be altered or repealed by the shareholders.
ARTICLE X
Pursuant to Article 1302-7.06 of the Texas Miscellaneous Corporation Laws
Act, as amended, no member of the Board of Directors of the Corporation shall be
liable, personally or otherwise, in any way to the Corporation or its
shareholders for monetary damages caused in any way by an act or omission
occurring in the director's capacity as a director of the Corporation, except
that this Article does not eliminate or limit liability of a director to the
extent that the director is found liable for:
(1) a breach of a director's duty of loyalty to the Corporation or its
shareholders;
(2) an act or omission not in good faith that constitutes a breach of duty
of the director to the Corporation or an act or omission that involves
intentional misconduct or a knowing violation of the law;
(3) a transaction from which the director received an improper benefit
whether or not the benefit resulted from an action taken within the
scope of the director's office; or
(4) an act or omission for which the liability of a director is expressly
provided by an applicable statute.
ARTICLE XI
The Corporation shall have the obligation or power, as may be applicable
under the Corporation's bylaws, to indemnify its officers, directors, employees
and agents for costs and expenses incurred by such persons in connection with
certain legal proceedings, and to purchase and maintain liability insurance for
those persons, as provided in the Corporation's bylaws and any future amendments
thereto, and to the full extent permitted by the applicable laws of the State of
Texas and any future amendments thereto.
ARTICLE XII
Any action required by the Texas Business Corporation Act to be taken at
any annual or special meeting of shareholders, or any action that may be taken
at any annual or special meeting of shareholders, may be taken without a
meeting, without prior notice and without a vote, if a consent or consents in
writing, setting forth the action so taken, shall be signed by the holder or
holders of shares having not less than the minimum number of votes that would be
necessary to take such action at a meeting at which the holders of all shares
entitled to vote on the action were present and voted. Such consent or consents
shall be in such form and shall be delivered to the Corporation in such manner
as specified in Article 9.10A of the Texas Business Corporation Act, as amended,
or similar successor provision.
Executed effective as of the 29th day of December, 2005.
/s/ Bruce H. Vincent
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Bruce H. Vincent, President
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EXHIBIT A
CERTIFICATE OF DESIGNATION OF
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
CERTIFICATE OF DESIGNATION
of
SERIES A JUNIOR PARTICIPATING PREFERRED STOCK
of
SWIFT ENERGY COMPANY
Pursuant to Article 2.13(D) of the
Texas Business Corporation Act
SWIFT ENERGY COMPANY, a corporation organized and existing under the Texas
Business Corporation Act (the "Corporation"), in accordance with the applicable
provisions thereof, DOES HEREBY CERTIFY:
That pursuant to the authority vested in the Board of Directors in
accordance with the provisions of the Articles of Incorporation of the said
Corporation, the said Board of Directors effective as of December 15, 2005 duly
adopted the following resolution creating a series of shares of Preferred Stock
effective at 9:00 a.m., local time in Austin, Texas on December 28, 2005
designated as "Series A Junior Participating Preferred Stock":
RESOLVED, that pursuant to the authority vested in the Board of
Directors of this Corporation in accordance with the provisions of the
Articles of Incorporation, a series of Preferred Stock, par value $.01
per share, of the Corporation be and hereby is created, and that the
designation and number of shares thereof and the voting and other
powers, preferences and relative, participating, optional or other
rights of the shares of such series and the qualifications,
limitations and restrictions thereof are as follows:
Series A Junior Participating Preferred Stock
1. Designation and Amount. There shall be a series of Preferred Stock that
shall be designated as "Series A Junior Participating Preferred Stock," and the
number of shares constituting such series shall be 1,000,000. Such number of
shares may be increased or decreased by resolution of the Board of Directors;
provided, however, that no decrease shall reduce the number of shares of Series
A Junior Participating Preferred Stock to less than the number of shares then
issued and outstanding plus the number of shares issuable upon exercise of
outstanding rights, options or warrants or upon conversion of outstanding
securities issued by the Corporation.
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2. Dividends and Distribution.
(A) Subject to the prior and superior right of the holders of any shares
of any class or series of stock of the Corporation ranking prior and superior to
the shares of Series A Junior Participating Preferred Stock with respect to
dividends, the holders of shares of Series A Junior Participating Preferred
Stock, shall be entitled to receive, when, as and if declared by the Board of
Directors out of funds legally available for the purpose, quarterly dividends
payable in cash on the 15th day of January, April, July and October, in each
year (each such date being referred to herein as a "Quarterly Dividend Payment
Date"), commencing on the first Quarterly Dividend Payment Date after the first
issuance, of a share or fraction of a share of Series A Junior Participating
Preferred Stock, in an amount per share (rounded to the nearest cent) equal to
the Adjustment Number (as defined below) times the aggregate per share amount of
all cash dividends, and the Adjustment Number times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $.01 per share, of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date, or,
with respect to the first Quarterly Dividend Payment Date, since the first
issuance of any share or fraction of a share of Series A Junior Participating
Preferred Stock. The "Adjustment Number" shall initially be 1000. In the event
that the Corporation (or Swift Energy Company as to which the Corporation is a
successor in part) shall at any time after August 12, 1997 (the "Rights
Declaration Date") (i) declare and pay any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock or (iii)
combine the outstanding Common Stock into a smaller number of shares, then in
each such case the Adjustment Number in effect immediately prior to such event
shall be adjusted by multiplying such Adjustment Number by a fraction, the
numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such event.
(B) The Corporation shall declare a dividend or distribution on
the Series A Junior Participating Preferred Stock as provided in paragraph
(A) above immediately after it declares a dividend or distribution on the Common
Stock (other than a dividend payable in shares of Common Stock).
(C) The Board of Directors may fix a record date for the determination
of holders of shares of Series A Junior Participating Preferred Stock entitled
to receive payment of a dividend or distribution declared thereon, which record
date shall be no more than 60 days prior to the date fixed for the payment
thereof.
3. Voting Rights. The holders of shares of Series A Junior Participating
Preferred Stock shall have the following voting rights:
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(A) Each share of Series A Junior Participating Preferred Stock shall
entitle the holder thereof to a number of votes equal to the Adjustment Number
on all matters submitted to a vote of the stockholders of the Corporation.
(B) Except as required by law and by Section 10 hereof, holders of
Series A Junior Participating Preferred Stock shall have no special voting
rights and their consent shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set forth herein) for taking
any corporate action.
4. Certain Restrictions.
(A) Whenever quarterly dividends or other dividends or distributions
payable on the Series A Junior Participating Preferred Stock as provided in
Section 2 are in arrears, thereafter and until all accrued and unpaid dividends
and distributions, whether or not declared, on shares of Series A Junior
Participating Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare or pay dividends on, make any other distributions on,
or redeem or Purchase or otherwise acquire for consideration any shares of stock
ranking junior (either as to dividends or upon liquidation, dissolution or
winding up) to the Series A Junior Participating Preferred Stock;
(ii)declare or pay dividends on or make any other distributions on
any shares of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Junior Participating
Preferred Stock, except dividends paid ratably on the Series A Junior
Participating Preferred Stock and all such parity stock on which dividends are
payable or in arrears in proportion to the total amounts to which the holders
of all such shares are then entitled; or
(iii) purchase or otherwise acquire for consideration any shares of
Series A Junior Participating Preferred Stock, or any shares of stock ranking
on a parity with the Series A Junior Participating Preferred Stock, except
in accordance with a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of Series A Junior
Participating Preferred Stock, or to such holders and holders of any such shares
ranking on a parity therewith, upon such terms as the Board of Directors, after
consideration of the respective annual dividend rates and other relative rights
and preferences of the respective series and classes, shall determine in good
faith will result in fair and equitable treatment among the respective series or
classes.
(B) The Corporation shall not permit any subsidiary of the Corporation
to purchase or otherwise acquire for consideration any shares of stock of the
Corporation unless the Corporation could, under paragraph (A) of this Section 4,
purchase or otherwise acquire such shares at such time and in such manner.
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5. Reacquired Shares. Any shares of Series A Junior Participating Preferred
Stock purchased or otherwise acquired by the Corporation in any manner
whatsoever shall be retired promptly after the acquisition thereof. All such
shares shall upon their retirement become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new series of Preferred Stock
to be created by resolution or resolutions of the Board of Directors, subject to
any conditions and restrictions on issuance set forth herein.
6. Liquidation, Dissolution or Winding Up.
(A) Upon any liquidation, dissolution or winding up of the Corporation,
voluntary or otherwise, no distribution shall be made to the holders of shares
of stock ranking junior (either as to dividends or upon liquidation, dissolution
or winding up) to the Series A Junior Participating Preferred Stock unless,
prior thereto, the holders of shares of Series A Junior Participating Preferred
Stock shall have received an amount per share (the "Series A Liquidation
Preference") equal to the greater of (i) $1.00 plus an amount equal to accrued
and unpaid dividends and distributions thereon whether or not declared, to the
date of such payment, or (ii) the Adjustment Number times the per share amount
of all cash and other property to be distributed in respect of the Common Stock
upon such liquidation, dissolution or winding up of the Corporation.
(B) In the event, however,that there are not sufficient assets available
to permit payment in full of the Series A Liquidation Preference and the
liquidation preferences of all other classes and series of stock of the
Corporation, if any, that rank on a parity with the Series A Junior
Participating Preferred Stock in respect thereof, then the assets available for
such distribution shall be distributed ratably to the holders of the Series A
Junior Participating Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.
(C) Neither the merger or consolidation of the Corporation into or with
another corporation nor the merger or consolidation of any other corporation
into or with the Corporation shall be deemed to be a liquidation, dissolution or
winding up of the Corporation within the meaning or this Section 6.
7. Consolidation, Merger, Etc. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the outstanding
shares of Common Stock are exchanged for or changed into other stock or
securities, cash and/or any other property, then in any such case each share of
Series A Junior Participating Preferred Stock shall at the same time be
similarly exchanged or changed in an amount per share equal to the Adjustment
Number times the aggregate amount of stock, securities, cash and/or any other
property (payable in kind), as the case may be, into which or for which each
share of Common Stock is changed or exchanged.
8. No Redemption. Shares of Series A Junior Participating Preferred Stock
shall not be subject to redemption by the Company.
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9. Ranking. The Series A Junior Participating Preferred Stock shall rank
junior to all other series of the Preferred Stock as to the payment of
dividends, and as to the distribution of assets upon liquidation, dissolution or
winding up, unless the terms of any such series shall provide otherwise, and
shall rank senior to the Common Stock as to such matters.
10. Amendment. At any time that any shares of Series A Junior Participating
Preferred Stock are outstanding, the Articles of Incorporation of the
Corporation, as amended or restated from time to time, shall not be amended in
any manner which would materially alter or change the powers, preferences or
special rights of the Series A Junior Participating Preferred Stock so as to
affect them adversely without the affirmative vote of the holders of two-thirds
of the outstanding shares of Series A Junior Participating Preferred Stock,
voting separately as a class.
11. Fractional Shares. Series A Junior Participating Preferred Stock may be
issued in fractions of a share that shall entitle the holder, in proportion to
such holder's fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Junior Participating Preferred Stock.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as of
1:00 p.m., local time in Austin, Texas on this 28th day of December, 2005.
SWIFT ENERGY COMPANY
By: /s/ Bruce H. Vincent
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Bruce H. Vincent
President
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