AMENDMENT NO. 2 TO RIGHTS AGREEMENT
THIS AMENDMENT NO. 2 TO RIGHTS AGREEMENT (this "Amendment No. 2"), dated as
of December 21, 2006, is between Swift Energy Company, a Texas corporation (the
"Company"), and American Stock Transfer & Trust Company, as Rights Agent (the
"Rights Agent").
A. Recitals.
1. The Company and the Rights Agent are parties to a Rights Agreement,
dated as of August 1, 1997, the Amended and Restated Rights Agreement dated as
of March 31, 1999, and Amendment No. 1 to the Rights Agreement dated as of
December 12, 2005 (the "Rights Agreement").
2. Under Section 27 of the Rights Agreement, the Company and the Rights
Agent desire to amend the Rights Agreement as set forth below.
B. Amendments to Rights Agreement.
1. Amendments to Section 7.
Paragraphs (a) and (b) of Section 7 of the Rights Agreement are hereby
amended to read in their entirety as follows:
a. "Except as otherwise provided herein, the Rights shall
become exercisable on the Distribution Date, and thereafter the
registered holder of any Right Certificate may, subject to Section 11(a)
(ii) hereof and except as otherwise provided herein, exercise the Rights
evidenced thereby in whole or in part upon surrender of the Right
Certificate, with the form of election to purchase on the reverse side
thereof duly executed, to the Rights Agent at the office or agency of the
Rights Agent designated for such purpose, together with payment of the
aggregate Purchase Price with respect to the total number of one
one-thousandths of a share of Preferred Stock (or other securities, cash or
other assets, as the case may be) as to which the Rights are exercised, at
any time which is both after the Distribution Date and prior to the time
(the "Expiration Date") that is the earliest of (i) the Close of Business
on December 20, 2016 (the "Final Expiration Date"), (ii) the time at which
the Rights are redeemed as provided in Section 23 hereof (the
"Redemption Date"), or (iii) the time at which such Rights are exchanged as
provided in Section 24 hereof."
b. "The Purchase Price shall be $250 for each one one-thousandth of a
share of Preferred Stock purchasable upon the exercise of a Right.
The Purchase Price and the number of one one-thousandths of a share
of Preferred Stock or other securities or property to be acquired
upon exercise of a Right shall be subject to adjustment from time to
time as provided in Sections 11 and 13 hereof and shall be payable in
lawful money of the United States of America in accordance with
paragraph (c) of this Section 7."
2. Form of Right Certificate.
The form of Right Certificate attached to the Amended and Restated
Rights Agreement dated as of March 31, 1999 as Exhibit B shall be replaced
in its entirety by the form of Right Certificate attached hereto and
designated as Exhibit B.
3. Effectiveness.
This Amendment No. 2 shall be deemed effective as of December 21, 2006,
as if executed by both parties hereto on such date. Except as amended hereby,
the Rights Agreement shall remain in full force and effect and shall be
otherwise unaffected hereby.
4. Miscellaneous.
This Amendment No. 2 shall be deemed to be a contract made under the
laws of the State of Texas and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts
to be made and performed entirely within such state. This Amendment No. 2 may
be executed in any number of counterparts, each of such counterparts shall for
all purposes be deemed to be an original, and all such counterparts shall
together constitute but one and the same instrument. If any term, provision,
covenant or restriction of this Amendment No. 2 is held by a court of competent
jurisdiction or other authority to be invalid, illegal or unenforceable,
the remainder of the terms, provisions, covenants and restrictions of this
Amendment No. 2 shall remain in full force and effect and shall in no way be
affected, impaired or invalidated.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to
be duly executed as of the date set forth above.
SWIFT ENERGY COMPANY
By: /s/ Bruce H. Vincent
----------------------------------
Name: Bruce H. Vincent
Title: President
AMERICAN STOCK TRANSFER & TRUST COMPANY
By: /s/ Herbert J. Lemmer
------------------------------------
Herbert J. Lemmer
Exhibit B
Form of Right Certificate
Certificate No. R-__________
NOT EXERCISABLE AFTER DECEMBER 20, 2016, OR
EARLIER IF REDEMPTION OR EXCHANGE OCCURS.
THE RIGHTS ARE SUBJECT TO REDEMPTION AT $.01
PER RIGHT AND TO EXCHANGE ON THE TERMS SET
FORTH IN THE RIGHTS AGREEMENT. UNDER CERTAIN
CIRCUMSTANCES AS SET FORTH IN THE RIGHTS
AGREEMENT, RIGHTS OWNED BY OR TRANSFERRED
TO ANY PERSON WHO IS OR BECOMES AN ACQUIRING
PERSON (AS DEFINED IN THE RIGHTS AGREEMENT)
AND CERTAIN TRANSFEREES THEREOF WILL BECOME
NULL AND VOID AND WILL NO LONGER BE
TRANSFERABLE.
RIGHT CERTIFICATE
SWIFT ENERGY COMPANY
This certifies that ______________________________ or registered assigns,
is the registered owner of the number of Rights set forth above, each of which
entitles the owner thereof, subject to the terms, provisions and conditions of
the Rights Agreement, dated as of August 1, 1997, the Amended and Restated
Rights Agreement dated as of March 31, 1999, and Amendment No. 1 to the Rights
Agreement dated as of December 12, 2005, and Amendment No. 2 to the Rights
Agreement dated as of December 21, 2006, as the same may be further amended from
time to time (the "Rights Agreement"), between SWIFT ENERGY COMPANY, a Texas
corporation (the "Company"), and AMERICAN STOCK TRANSFER & TRUST COMPANY, a New
York corporation, as Rights Agent (the "Rights Agent"), to purchase from the
Company at any time after the Distribution Date (as such term is defined in the
Rights Agreement) and prior to 5:00 P.M., Houston, Texas time, on December 20,
2016, at the office or agency of the Rights Agent designated for such purpose,
or of its successor as Rights Agent, one one-thousandth of a fully paid
non-assessable share of Series A Junior Participating Preferred Stock, par value
$.01 per share (the "Preferred Stock"), of the Company at a purchase price of
$250 per one one-thousandth of a share of Preferred Stock (the "Purchase
Price"), upon presentation and surrender of this Right Certificate with the Form
of Election to Purchase duly executed. The number of Rights evidenced by this
Right Certificate (and the number of one one-thousandths of a share of Preferred
Stock which may be purchased upon exercise hereof) set forth above, and the
Purchase Price set forth above, are the number and Purchase Price as of December
21, 2006, based on the Preferred Stock as constituted at such date. As provided
in the Rights Agreement, the Purchase Price, the number of one one-thousandths
of a share of Preferred Stock (or other securities or property) which may be
purchased upon the exercise of the Rights and the number of Rights evidenced by
this Right Certificate are subject to modification and adjustment upon the
happening of certain events.
This Right Certificate is subject to all of the terms, provisions and
conditions of the Rights Agreement, which terms, provisions and conditions are
hereby incorporated herein by reference and made a part hereof and to which
Rights Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Right Certificates. Copies of
the Rights Agreement are on file at the principal executive offices of the
Company and the above-mentioned office or agency of the Rights Agent. The
Company will mail to the holder of this Right Certificate a copy of the Rights
Agreement without charge after receipt of a written request therefor.
This Right Certificate, with or without other Right Certificates, upon
surrender at the office or agency of the Rights Agent designated for such
purpose, may be exchanged for another Right Certificate or Right Certificates of
like tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of shares of Preferred Stock as the Rights evidenced by the
Right Certificate or Right Certificates surrendered shall have entitled such
holder to purchase. If this Right Certificate shall be exercised in part, the
holder shall be entitled to receive upon surrender hereof another Right
Certificate or Right Certificates for the number of whole Rights not exercised.
Subject to the provisions of the Rights Agreement, the Rights evidenced by
this Certificate (i) may be redeemed by the Company at a redemption price of
$.01 per Right or (ii) may be exchanged in whole or in part for shares of the
Company's Common Stock, par value $.01 per share, or shares of Preferred Stock.
No fractional shares of Preferred Stock or Common Stock will be issued upon
the exercise or exchange of any Right or Rights evidenced hereby (other than
fractions of Preferred Stock which are integral multiples of one one-thousandth
of a share of Preferred Stock, which may, at the election of the Company, be
evidenced by depository receipts), but in lieu thereof a cash payment will be
made, as provided in the Rights Agreement.
No holder of this Right Certificate, as such, shall be entitled to vote or
receive dividends or be deemed for any purpose the holder of the Preferred Stock
or of any other securities of the Company which may at any time be issuable on
the exercise or exchange hereof, nor shall anything contained in the Rights
Agreement or herein be construed to confer upon the holder hereof, as such, any
of the rights of a stockholder of the Company or any right to vote for the
election of directors or upon any matter submitted to stockholders at any
meeting thereof, or to give or withhold consent to any corporate action, or to
receive notice of meetings or other actions affecting stockholders (except as
provided in the Rights Agreement) or to receive dividends or subscription
rights, or otherwise, until the Right or Rights evidenced by this Right
Certificate shall have been exercised or exchanged as provided in the Rights
Agreement.
This Right Certificate shall not be valid or obligatory for any purpose
until it shall have been countersigned by the Rights Agent.
WITNESS the facsimile signature of the proper officers of the Company and
its corporate seal.
Dated as of ____________________.
SWIFT ENERGY COMPANY
---------------------------
Terry E. Swift
Chairman of the Board and
Chief Executive Officer
ATTEST:
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Karen Bryant, Secretary
Countersigned:
AMERICAN STOCK TRANSFER &
TRUST COMPANY, as Rights Agent
- -----------------------------
By: __________________________
Name: ________________________
Title:__________________________