exv4w4






Exhibit 4.4




WARRANT AGREEMENT




HICKS ACQUISITION COMPANY II, INC.



and



CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent



 





WARRANT AGREEMENT



Dated as of                     , 2010



 









 





          THIS WARRANT AGREEMENT (this “Agreement”), dated as of                     , 2010, is by and between Hicks
Acquisition Company II, Inc., a Delaware corporation (the “Company”), and Continental Stock
Transfer & Trust Company, a New York corporation, as Warrant Agent (the “Warrant Agent”).




          WHEREAS, the Company has entered into that certain Sponsor Warrants Purchase Agreement, dated
as of June 23, 2010 (the “Sponsor Warrants Purchase Agreement”), with HH-HACII, L.P., a Delaware
limited partnership (the “Sponsor”), an entity controlled by Thomas O. Hicks, the Company’s
Chairman of the Board of Directors (the “Founder”), pursuant to which the Sponsor will purchase an
aggregate of 6,666,667 Warrants bearing the legend set forth in Exhibit B hereto (the
“Sponsor Warrants”) at a purchase price of $0.75 per Sponsor Warrant, to be sold to the Sponsor
simultaneously with the closing of the Offering (as defined below); and




          WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the
Company’s equity securities, each such unit comprised of one share of the Common Stock (as defined
below) and one Offering Warrant (as defined below) (the “Units”) and, in connection therewith, has
determined to issue and deliver up to 15,000,000 warrants to public investors in the Offering (the
“Offering Warrants” and, together with the Sponsor Warrants, the “Warrants”), each such Warrant
evidencing the right of the holder thereof to purchase one share of the common stock of the
Company, par value $0.0001 per share (the “Common Stock”), for $12.00 per share, subject to
adjustment as described herein; and




          WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”)
a registration statement on Form S-1, No. 333-167809 (the “Registration Statement”) and prospectus
(the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the
“Securities Act”), of the Units, the Offering Warrants and the Common Stock included in the Units;
and




          WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance, registration, transfer,
exchange, redemption and exercise of the Warrants; and




          WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms
upon which they shall be issued and exercised, and the respective rights, limitation of rights, and
immunities of the Company, the Warrant Agent, and the holders of the Warrants; and




          WHEREAS, all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant
Agent, as provided herein, the valid, binding and legal obligations of the Company, and to
authorize the execution and delivery of this Agreement.




          NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto
agree as follows:




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	1.	 	Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act
as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and conditions set
forth in this Agreement.
	 
	2.	 	Warrants.






	 	2.1.	 	Form of Warrant. Each Warrant shall be issued in registered form only and
shall be in substantially the form of Exhibit A hereto, the provisions of which are
incorporated herein and shall be signed by, or bear the facsimile signature of, the
Chairman of the Board, President, Chief Executive Officer, Secretary or other principal
officer of the Company. In the event the person whose facsimile signature has been placed
upon any Warrant shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as if he or
she had not ceased to be such at the date of issuance.
	 
	 	2.2.	 	Effect of Countersignature. Unless and until countersigned by the Warrant
Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not
be exercised by the holder thereof.
	 
	 	2.3.	 	Registration.






	 	2.3.1.	 	Warrant Register. The Warrant Agent shall maintain books (the “Warrant
Register”), for the registration of original issuance and the registration of transfer
of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall
issue and register the Warrants in the names of the respective holders thereof in such
denominations and otherwise in accordance with instructions delivered to the Warrant
Agent by the Company.
	 
	 	2.3.2.	 	Registered Holder. Prior to due presentment for registration of transfer of
any Warrant, the Company and the Warrant Agent may deem and treat the person in whose
name such Warrant is registered in the Warrant Register (the “Registered Holder”) as
the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant Certificate
(as defined below) made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the Company
nor the Warrant Agent shall be affected by any notice to the contrary.






	 	2.4.	 	Detachability of Warrants. The Common Stock and Offering Warrants comprising
the Units shall begin separate trading on the 52nd day following the date of the
Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday
or federal holiday, on which banks in New York City are generally open for normal business
(a “Business Day”), then on the immediately succeeding Business Day following such date, or
earlier (the “Detachment Date”) with the consent of Citigroup Global Markets Inc. (“Citi”),
as representative of the several underwriters, but in no event shall the Common Stock and
the Offering Warrants comprising the Units be separately traded until (A) the Company




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	 	 	 	has filed a current report on Form 8-K with the Commission containing an audited balance
sheet reflecting the receipt by the Company of the gross proceeds of the Offering,
including the proceeds received by the Company from the exercise by the underwriters of
their right to purchase additional shares of the Common Stock in the Offering (the
“Over-allotment Option”), if the Over-allotment Option is exercised prior to the filing of
the Form 8-K and (y) the Company issues a press release and files with the Commission a
current report on Form 8-K announcing when such separate trading shall begin.






	 	2.5.	 	Warrant Attributes.






	 	2.5.1.	 	Sponsor Warrants. The Sponsor Warrants shall be identical to the Offering
Warrants, except that so long as they are held by the Sponsor, the Founder or any of
their Permitted Transferees (as defined below) the Sponsor Warrants: (i) may be
exercised for cash or on a cashless basis, pursuant to subsection 3.3.1(c)
hereof, (ii) may not be transferred, assigned or sold until thirty (30) days after the
completion by the Company of an initial Business Combination (as defined below), and
(iii) shall not be redeemable by the Company; provided, however, that
in the case of (ii), the Sponsor Warrants and any shares of the Common Stock held by
the Sponsor and issued upon exercise of the Sponsor Warrants may be transferred by the
Sponsor: (a) to the Company’s officers or directors, any affiliate or family member of
any of the Company’s officers or directors or any affiliate of the Sponsor or to any
limited partner(s) of the Sponsor; (b) in the case of the Founder, by gift to a member
of the Founder’s immediate family or to a trust, the beneficiary of which is a member
of the Founder’s immediate family, an affiliate of the Founder or to a charitable
organization; (c) in the case of the Founder, by virtue of the laws of descent and
distribution upon death of the Founder; (d) in the case of the Founder, pursuant to a
qualified domestic relations order; (e) by virtue of the laws of the state of Delaware
or the Sponsor’s limited partnership agreement upon dissolution of the Sponsor; (f) in
the event of the Company’s liquidation prior to the completion of the Company’s initial
Business Combination; or (g) in the event that the Company consummates a subsequent
liquidation, merger, stock exchange or other similar transaction that results in all of
the holders of the Company’s equity securities issued in the Offering having the right
to exchange their shares of the Common Stock for cash, securities or other property
subsequent to the consummation of the Company’s initial Business Combination;
provided, however, that, in the case of clauses (a) through (d), these
transferees (the “Permitted Transferees”) enter into a written agreement with the
Company agreeing to be bound by the transfer restrictions in this Agreement.






	3.	 	Terms and Exercise of Warrants.






	 	3.1.	 	Warrant Price. Each Warrant shall, when countersigned by the Warrant Agent,
entitle the Registered Holder thereof, subject to the provisions of such Warrant and of
this Warrant Agreement, to purchase from the Company the number of shares of the Common
Stock stated therein, at the price of $12.00 per share, subject to the adjustments




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	 	 	 	provided in Section 4 hereof and in the last sentence of this Section 3.1.
The term “Warrant Price” as used in this Warrant Agreement shall mean the price per share
at which shares of the Common Stock may be purchased at the time a Warrant is exercised.
The Company in its sole discretion may lower the Warrant Price at any time prior to the
Expiration Date (as defined below) for a period of not less than twenty (20) Business Days,
provided, that the Company shall provide at least twenty (20) days prior written
notice of such reduction to Registered Holders of the Warrants and, provided further that
any such reduction shall be identical among all of the Warrants.






	 	3.2.	 	Duration of Warrants. A Warrant may be exercised only during the period (the
“Exercise Period”) commencing on the later of: (i) the date that is thirty (30) days after
the first date on which the Company completes a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or similar business combination, involving the
Company and one or more businesses (a “Business Combination”), or (ii) the date that is
twelve (12) months from the date of the closing of the Offering, and terminating at 5:00
p.m., New York City time on the earlier to occur of: (x) the date that is five (5) years
after the date on which the Company completes its initial Business Combination, (y) the
liquidation of the Company, or (z) other than with respect to the Sponsor Warrants, the
Redemption Date (as defined below) as provided in Section 6.2 hereof (the
“Expiration Date”); provided, however, that the exercise of any Warrant
shall be subject to the satisfaction of any applicable conditions, as set forth in
subsection 3.3.2 below with respect to an effective registration statement. Except
with respect to the right to receive the Redemption Price (other than with respect to a
Sponsor Warrant) in the event of a redemption (as set forth in Section 6 hereof),
each Warrant (other than a Sponsor Warrant in the event of a redemption) not exercised on
or before the Expiration Date shall become void, and all rights thereunder and all rights
in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the
Expiration Date. The Company in its sole discretion may extend the duration of the
Warrants by delaying the Expiration Date; provided, that the Company shall provide at least
twenty (20) days prior written notice of any such extension to Registered Holders of the
Warrants and, provided further that any such extension shall be identical in duration among
all the Warrants.
	 
	 	3.3.	 	Exercise of Warrants.






	 	3.3.1.	 	Payment. Subject to the provisions of the Warrant and this Warrant
Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised by the
Registered Holder thereof by surrendering it, at the office of the Warrant Agent, or at
the office of its successor as Warrant Agent, in the Borough of Manhattan, City and
State of New York, with the subscription form, as set forth in the Warrant, duly
executed, and by paying in full the Warrant Price for each full share of the Common
Stock as to which the Warrant is exercised and any and all applicable taxes due in
connection with the exercise of the Warrant, the exchange of the Warrant for the shares
of the Common Stock and the issuance of such Common Stock, as follows:




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     (a) in lawful money of the United States, in good certified check or good bank
draft payable to the order of the Company;




     (b) in the event of a redemption pursuant to Section 6 hereof in which the
Company’s board of directors (the “Board”) has elected to require all holders of the
Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants
for that number of shares of the Common Stock equal to the quotient obtained by dividing
(x) the product of the number of shares of the Common Stock underlying the Warrants,
multiplied by the difference between the Warrant Price and the “Fair Market Value”, as
defined in this subsection 3.3.1(b) by (y) the Fair Market Value. Solely for
purposes of this subsection 3.3.1(b) and Section 6.3, the “Fair Market
Value” shall mean the average last sale price of the Common Stock for the ten (10)
trading days ending on the third trading day prior to the date on which the notice of
redemption is sent to the holders of the Warrants, pursuant to Section 6 hereof;



     (c) with respect to any Sponsor Warrant, so long as such Sponsor Warrant is held by
the Sponsor or its Permitted Transferees, by surrendering the Warrants for that number
of shares of the Common Stock equal to the quotient obtained by dividing (x) the product
of the number of shares of the Common Stock underlying the Warrants, multiplied by the
difference between the Warrant Price and the “Fair Market Value”, as defined in this
subsection 3.3.1(c), by (y) the Fair Market Value. Solely for purposes of this
subsection 3.3.1(c), the “Fair Market Value” shall mean the average last sale
price of the Common Stock for the ten (10) trading days ending on the third trading day
prior to the date on which notice of exercise of the Warrant is sent to the Warrant
Agent; or




     (d) as
provided in Section 7.4 hereof.




	 	3.3.2.	 	Issuance of Shares of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the
clearance of the funds in payment of the Warrant Price (if payment is pursuant to
subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such
Warrant a certificate or certificates for the number of full shares of the Common Stock
to which he, she or it is entitled, registered in such name or names as may be directed
by him, her or it, and if such Warrant shall not have been exercised in full, a new
countersigned Warrant for the number of shares as to which such Warrant shall not have
been exercised. Notwithstanding the foregoing, the Company shall not be obligated to
deliver any shares of the Common Stock pursuant to the exercise of a Warrant and shall
have no obligation to settle such Warrant exercise unless a registration statement
under the Securities Act with respect to the shares of the Common Stock underlying the
Offering Warrants is then effective and a prospectus relating thereto is current,
subject to the Company’s satisfying its obligations under Section 7.4. No
Warrant shall be exercisable and the Company shall not be obligated to issue shares of
the Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such
Warrant exercise has been registered, qualified or deemed to be exempt under the
securities laws of the state of residence of the Registered Holder of the Warrants. In
the event that the conditions in the two immediately preceding sentence are not
satisfied with respect to a Warrant, the




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	 	 	 	holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant
may have no value and expire worthless. In no event shall the Company be required to
net cash settle any Warrant. In the event that a registration statement is not
effective for the exercised Offering Warrants, the purchaser of a Unit containing such
Offering Warrant shall have paid the full purchase price for the Unit solely for the
shares of the Common Stock underlying such Unit.
	 
	 	3.3.3.	 	Valid Issuance. All shares of the Common Stock issued or issuable upon the
proper exercise of a Warrant in conformity with this Agreement shall be validly issued,
fully paid and nonassessable.
	 
	 	3.3.4.	 	Date of Issuance. Each person in whose name any certificate for shares of
the Common Stock is issued shall for all purposes be deemed to have become the holder
of record of such shares of the Common Stock on the date on which the Warrant was
surrendered and payment of the Warrant Price was made, irrespective of the date of
delivery of such certificate, except that, if the date of such surrender and payment is
a date when the share transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the close of business on the next
succeeding date on which the share transfer books are open.
	 
	 	3.3.5.	 	Maximum Percentage. A holder of a Warrant may notify the Company in writing
in the event it elects to be subject to the provisions contained in this subsection
3.3.5;however, no holder of a Warrant shall be subject to this subsection
3.3.5 unless he, she or it makes such election. If the election is made by a
holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and
such holder shall not have the right to exercise such Warrant, to the extent that after
giving effect to such exercise, such person (together with such person’s affiliates),
to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the
“Maximum Percentage”) of the shares of the Common Stock outstanding immediately after
giving effect to such exercise. For purposes of the foregoing sentence, the aggregate
number of shares of the Common Stock beneficially owned by such person and its
affiliates shall include the number of shares of the Common Stock issuable upon
exercise of the Warrant with respect to which the determination of such sentence is
being made, but shall exclude shares of the Common Stock that would be issuable upon
(x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by
such person and its affiliates and (y) exercise or conversion of the unexercised or
unconverted portion of any other securities of the Company beneficially owned by such
person and its affiliates (including, without limitation, any convertible notes or
convertible preferred stock or warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein. Except as set forth in the
preceding sentence, for purposes of this paragraph, beneficial ownership shall be
calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as
amended (the “Exchange Act”). For purposes of the Warrant, in determining the number
of outstanding shares of the Common Stock, the holder may rely on the number of
outstanding shares of the Common Stock as reflected in (1) the Company’s most recent
Form 10-K, Form 10-Q, current




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	 	 	 	report on Form 8-K or other public filing with the Commission as the case may be, (2)
a more recent public announcement by the Company or (3) any other notice by the
Company or Continental Stock Transfer & Trust Company (the “Transfer Agent”) setting
forth the number of shares of the Common Stock outstanding. For any reason at any
time, upon the written request of the holder of the Warrant, the Company shall, within
two (2) Business Days, confirm orally and in writing to such holder the number of
shares of the Common Stock then outstanding. In any case, the number of outstanding
shares of the Common Stock shall be determined after giving effect to the conversion
or exercise of equity securities of the Company by the holder and its affiliates since
the date as of which such number of outstanding shares of the Common Stock was
reported. By written notice to the Company, the holder of a Warrant may from time to
time increase or decrease the Maximum Percentage applicable to such holder to any
other percentage specified in such notice; provided, however, that any such
increase shall not be effective until the sixty-first (61st) day after such
notice is delivered to the Company.






	4.	 	Adjustments.






	 	4.1.	 	Stock Dividends.






	 	4.1.1.	 	Split-Ups. If after the date hereof, and subject to the provisions of
Section 4.6 below, the number of outstanding shares of the Common Stock is
increased by a stock dividend payable in shares of the Common Stock, or by a split-up
of shares of the Common Stock or other similar event, then, on the effective date of
such stock dividend, split-up or similar event, the number of shares of the Common
Stock issuable on exercise of each Warrant shall be increased in proportion to such
increase in the outstanding shares of the Common Stock. A rights offering to holders
of the Common Stock entitling holders to purchase shares of the Common Stock at a price
less than the “Fair Market Value” (as defined below) shall be deemed a stock dividend
of a number of shares of the Common Stock equal to the product of (i) the number of
shares of the Common Stock actually sold in such rights offering (or issuable under any
other equity securities sold in such rights offering that are convertible into or
exercisable for the Common Stock) multiplied by (ii) the quotient of (x) the price per
share of the Common Stock paid in such rights offering divided by (y) the Fair Market
Value. For purposes of this subsection 4.1.1, (i) if the rights offering is
for securities convertible into or exercisable for the Common Stock, in determining the
price payable for the Common Stock, there shall be taken into account any consideration
received for such rights, as well as any additional amount payable upon exercise or
conversion and (ii) “Fair Market Value” means the volume weighted average price of the
Common Stock as reported during the ten (10) trading day period ending on the trading
day prior to the first date on which the shares of the Common Stock trade on the
applicable exchange or in the applicable market, regular way, without the right to
receive such rights.
	 
	 	4.1.2.	 	Extraordinary Dividends. If the Company, at any time while the Warrants are
outstanding and unexpired, shall pay a dividend or make a distribution in cash,




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	 	 	 	securities or other assets to the holders of the Common Stock on account of such
shares of Common Stock (or other shares of the Company’s capital stock into which the
Warrants are convertible), other than (a) as described in subsection 4.1.1
above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption
rights of the holders of the Common Stock in connection with a proposed initial
Business Combination, (d) as a result of the repurchase of shares of Common Stock by
the Company if a proposed initial Business Combination is presented to the
stockholders of the Company for approval or (e) in connection with the Company’s
liquidation and the distribution of its assets upon its failure to consummate a
Business Combination (any such non- excluded event being referred to herein as an
“Extraordinary Dividend”), then the Warrant Price shall be decreased, effective
immediately after the effective date of such Extraordinary Dividend, by the amount of
cash and/or the fair market value (as determined by the Board, in good faith) of any
securities or other assets paid on each share of the Common Stock in respect of such
Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash
Dividends” means any cash dividend or cash distribution which, when combined on a per
share of the Common Stock basis, with the per share amounts of all other cash
dividends and cash distributions paid on the Common Stock during the 365-day period
ending on the date of declaration of such dividend or distribution (as adjusted to
appropriately reflect any of the events referred to in other subsections of this
Section 4 and excluding cash dividends or cash distributions that resulted in
an adjustment to the Warrant Price or to the number of shares of the Common Stock
issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering
price of the Units in the Company’s Offering).






	 	4.2.	 	Aggregation of Shares. If after the date hereof, and subject to the provisions
of Section 4.6 hereof, the number of outstanding shares of the Common Stock is
decreased by a consolidation, combination, reverse stock split or reclassification of
shares of the Common Stock or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar event, the
number of shares of the Common Stock issuable on exercise of each Warrant shall be
decreased in proportion to such decrease in outstanding shares of Common Stock.
	 
	 	4.3.	 	Adjustments in Exercise Price. Whenever the number of shares of the Common
Stock purchasable upon the exercise of the Warrants is adjusted, as provided in
subsection 4.1.1 or 4.2 above, the Warrant Price shall be adjusted (to the nearest
cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction
(x) the numerator of which shall be the number of shares of the Common Stock purchasable
upon the exercise of the Warrants immediately prior to such adjustment, and (y) the
denominator of which shall be the number of shares of the Common Stock so purchasable
immediately thereafter.
	 
	 	4.4.	 	Replacement of Securities upon Reorganization, etc. In case of any
reclassification or reorganization of the outstanding shares of the Common Stock (other
than a change under subsections 4.1.1 or 4.1.2 or Section 4.2
hereof or that solely affects the par value of such shares of the Common Stock), or in the
case of any merger or consolidation of




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	 	 	 	the Company with or into another corporation (other than a consolidation or merger in which
the Company is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding shares of the Common Stock), or in the case of any
sale or conveyance to another corporation or entity of the assets or other property of the
Company as an entirety or substantially as an entirety in connection with which the Company
is dissolved, the holders of the Warrants shall thereafter have the right to purchase and
receive, upon the basis and upon the terms and conditions specified in the Warrants and in
lieu of the shares of the Common Stock of the Company immediately theretofore purchasable
and receivable upon the exercise of the rights represented thereby, the kind and amount of
shares of stock or other securities or property (including cash) receivable upon such
reclassification, reorganization, merger or consolidation, or upon a dissolution following
any such sale or transfer, that the holder of the Warrants would have received if such
holder had exercised his, her or its Warrant(s) immediately prior to such event (the
“Alternative Issuance”); provided, however, that (i) if the holders of the
Common Stock were entitled to exercise a right of election as to the kind or amount of
securities, cash or other assets receivable upon such consolidation or merger, then the
kind and amount of securities, cash or other assets constituting the Alternative Issuance
for which each Warrant shall become exercisable shall be deemed to be the weighted average
of the kind and amount received per share by the holders of the Common Stock in such
consolidation or merger that affirmatively make such election, and (ii) if a tender,
exchange or redemption offer shall have been made to and accepted by the holders of the
Common Stock (other than a tender, exchange or redemption offer made by the Company in
connection with redemption rights held by stockholders of the Company as provided for in
the Company’s certificate of incorporation or as a result of the repurchase of shares of
Common Stock by the Company if a proposed initial Business Combination is presented to the
stockholders of the Company for approval) under circumstances in which, upon completion of
such tender or exchange offer, the maker thereof, together with members of any group
(within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a
part, and together with any affiliate or associate of such maker (within the meaning of
Rule 12b-2 under the Exchange Act) and any members of any such group of which any such
affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under
the Exchange Act) more than 50% of the outstanding shares of the Common Stock, the holder
of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount
of cash, securities or other property to which such holder would actually have been
entitled as a stockholder if such Warrant holder had exercised the Warrant prior to the
expiration of such tender or exchange offer, accepted such offer and all of the Common
Stock held by such holder had been purchased pursuant to such tender or exchange offer,
subject to adjustments (from and after the consummation of such tender or exchange offer)
as nearly equivalent as possible to the adjustments provided for in this Section 4;
provided further, however, that if more than 30% of the consideration receivable by
the holders of the Common Stock in the applicable event is payable in the form of common
stock in the successor entity that is not listed for trading on a national securities
exchange or on the OTC Bulletin Board, or is not to be so listed for trading immediately
following such event, then the Warrant Price shall be reduced by an amount (in dollars)
equal to the quotient of (x) $18 (subject to adjustment in accordance with




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	 	 	 	Section 6.1 hereof) minus the Per Share Consideration (as defined below) (but in no
event, less than zero), and (y): if the applicable event is announced on or prior to the
third anniversary of the closing date of the initial Business Combination, 2; if the
applicable event is announced after the third anniversary of the closing date of the
initial Business Combination and on or prior to the fourth anniversary of the closing date
of the initial Business Combination, 2.5; if the applicable event is announced after the
fourth anniversary of the closing date of the initial Business Combination and on or prior
to the Expiration Date, 3. “Per Share Consideration” means (i) if the consideration paid
to holders of the Common Stock consists exclusively of cash, the amount of such cash per
share of the Common Stock, and (ii) in all other cases, the volume weighted average price
of the Common Stock as reported during the ten (10) trading day period ending on the
trading day prior to the effective date of the applicable event. If any reclassification
or reorganization also results in a change in shares of the Common Stock covered by
subsection 4.1.1, then such adjustment shall be made pursuant to subsection
4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The
provisions of this Section 4.4 shall similarly apply to successive
reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
	 
	 	4.5.	 	Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or
the number of shares issuable upon exercise of a Warrant, the Company shall give written
notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting
from such adjustment and the increase or decrease, if any, in the number of shares
purchasable at such price upon the exercise of a Warrant, setting forth in reasonable
detail the method of calculation and the facts upon which such calculation is based. Upon
the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or
4.4, the Company shall give written notice of the occurrence of such event to each
holder of a Warrant, at the last address set forth for such holder in the Warrant Register,
of the record date or the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such event.
	 
	 	4.6.	 	No Fractional Shares. Notwithstanding any provision contained in this Warrant
Agreement to the contrary, the Company shall not issue fractional shares upon exercise of
Warrants. If, by reason of any adjustment made pursuant to this Section 4, the
holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a
fractional interest in a share, the Company shall, upon such exercise, round up to the
nearest whole number, the number of the shares of the Common Stock to be issued to such
holder.
	 
	 	4.7.	 	Form of Warrant. The form of Warrant need not be changed because of any
adjustment pursuant to this Section 4, and Warrants issued after such adjustment
may state the same Warrant Price and the same number of shares as is stated in the Warrants
initially issued pursuant to this Agreement; provided, however, that the
Company may at any time in its sole discretion make any change in the form of Warrant that
the Company may deem appropriate and that does not affect the substance thereof, and any
Warrant thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.




11









 






	 	4.8.	 	Other Events: In case any event shall occur affecting the Company as to which
none of the provisions of preceding subsections of this Section 4 are strictly
applicable, but which would require an adjustment to the terms of the Warrants in order to
(i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of
this Section 4, then, in each such case, the Company shall appoint a firm of
independent public accountants, investment banking or other appraisal firm of recognized
national standing, which shall give its opinion as to whether or not any adjustment to the
rights represented by the Warrants is necessary to effectuate the intent and purpose of
this Section 4 and, if they determine that an adjustment is necessary, the terms of
such adjustment. The Company shall adjust the terms of the Warrants in a manner that is
consistent with any adjustment recommended in such opinion.






	5.	 	Transfer and Exchange of Warrants.






	 	5.1.	 	Registration of Transfer. The Warrant Agent shall register the transfer, from
time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such
Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied
by appropriate instructions for transfer. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and the old Warrant
shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by
the Warrant Agent to the Company from time to time upon request.
	 
	 	5.2.	 	Procedure for Surrender of Warrants. Warrants may be surrendered to the
Warrant Agent, together with a written request for exchange or transfer, and thereupon the
Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the
Registered Holder of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided, however, that in the event that a Warrant surrendered
for transfer bears a restrictive legend (as in the case of the Sponsor Warrants), the
Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof
until the Warrant Agent has received an opinion of counsel for the Company stating that
such transfer may be made and indicating whether the new Warrants must also bear a
restrictive legend.
	 
	 	5.3.	 	Fractional Warrants. The Warrant Agent shall not be required to effect any
registration of transfer or exchange which shall result in the issuance of a warrant
certificate for a fraction of a warrant.
	 
	 	5.4.	 	Service Charges: No service charge shall be made for any exchange or
registration of transfer of Warrants.
	 
	 	5.5.	 	Warrant Execution and Countersignature. The Warrant Agent is hereby authorized
to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants
required to be issued pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with
Warrants duly executed on behalf of the Company for such purpose.




12









 






	 	5.6.	 	Transfer of Warrants. Prior to the Detachment Date, the Offering Warrants may
be transferred or exchanged only together with the Unit in which such Warrant is included,
and only for the purpose of effecting, or in conjunction with, a transfer or exchange of
such Unit. Furthermore, each transfer of a Unit on the register relating to such Units
shall operate also to transfer the Warrants included in such Unit. Notwithstanding the
foregoing, the provisions of this Section 5.6 shall have no effect on any transfer
of Warrants on and after the Detachment Date.






	6.	 	Redemption.






	 	6.1.	 	Redemption. Subject to Section 6.4 hereof, not less than all of the
outstanding Warrants may be redeemed, at the option of the Company, at any time while they
are exercisable and prior to their expiration, at the office of the Warrant Agent, upon
notice to the Registered Holders of the Warrants, as described in Section 6.2
below, at the price of $0.01 per Warrant (the “Redemption Price”), provided that the last
sales price of the Common Stock reported has been at least $18.00 per share (subject to
adjustment in compliance with Section 4 hereof), on each of twenty (20) trading
days within the thirty (30) trading-day period ending on the third Business Day prior to
the date on which notice of the redemption is given and provided that there is an effective
registration statement covering the shares of Common Stock issuable upon exercise of the
Warrants, and a current prospectus relating thereto, available throughout the 30-day
Redemption Period (as defined in Section 6.2 below).
	 
	 	6.2.	 	Date Fixed for, and Notice of, Redemption. In the event that the Company elects
to redeem all of the Warrants, the Company shall fix a date for the redemption (the
“Redemption Date”). Notice of redemption shall be mailed by first class mail, postage
prepaid, by the Company not less than thirty (30) days prior to the Redemption Date to the
Registered Holders of the Warrants to be redeemed at their last addresses as they shall
appear on the registration books. Any notice mailed in the manner herein provided shall be
conclusively presumed to have been duly given whether or not the Registered Holder received
such notice.
	 
	 	6.3.	 	Exercise After Notice of Redemption. The Warrants may be exercised, for cash
(or on a “cashless basis” in accordance with subsection 3.3.1(b) of this Agreement)
at any time after notice of redemption shall have been given by the Company pursuant to
Section 6.2 hereof and prior to the Redemption Date. In the event that the Company
determines to require all holders of Warrants to exercise their Warrants on a “cashless
basis” pursuant to subsection 3.3.1, the notice of redemption shall contain the
information necessary to calculate the number of shares of the Common Stock to be received
upon exercise of the Warrants, including the “Fair Market Value” (as such term is defined
in subsection 3.3.1(b) hereof) in such case. On and after the Redemption Date, the
record holder of the Warrants shall have no further rights except to receive, upon
surrender of the Warrants, the Redemption Price.




13









 






	 	6.4.	 	Exclusion of Sponsor Warrants. The Company agrees that the redemption rights
provided in this Section 6 shall not apply to the Sponsor Warrants if at the time
of the redemption such Sponsor Warrants continue to be held by the Sponsor or its Permitted
Transferees. However, once such Sponsor Warrants are transferred (other than to Permitted
Transferees under subsection 2.5.1), the Company may redeem the Sponsor Warrants,
provided that the criteria for redemption are met, including the opportunity of the holder
of such Sponsor Warrants to exercise the Sponsor Warrants prior to redemption pursuant to
Section 6.3. Sponsor Warrants that are transferred to persons other than Permitted
Transferees shall upon such transfer cease to be Sponsor Warrants and shall become Offering
Warrants under this Agreement.






	7.	 	Other Provisions Relating to Rights of Holders of Warrants.






	 	7.1.	 	No Rights as Stockholder. A Warrant does not entitle the Registered Holder
thereof to any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any preemptive
rights to vote or to consent or to receive notice as stockholders in respect of the
meetings of stockholders or the election of directors of the Company or any other matter.
	 
	 	7.2.	 	Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost,
stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to
indemnity or otherwise as they may in their discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any
such new Warrant shall constitute a substitute contractual obligation of the Company,
whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any
time enforceable by anyone.
	 
	 	7.3.	 	Reservation of the Common Stock. The Company shall at all times reserve and
keep available a number of its authorized but unissued shares of the Common Stock that
shall be sufficient to permit the exercise in full of all outstanding Warrants issued
pursuant to this Agreement.
	 
	 	7.4.	 	Registration of the Common Stock. The Company agrees that as soon as
practicable, but in no event later than fifteen (15) Business Days after the closing of its
initial Business Combination, it shall use its best efforts to file with the Commission a
post-effective amendment to the Registration Statement, or a new registration statement,
for the registration, under the Securities Act, of the shares of the Common Stock issuable
upon exercise of the Warrants, and it shall use its best efforts to take such action as is
necessary to qualify for sale, in those states in which the Warrants were initially offered
by the Company, the shares of the Common Stock issuable upon exercise of the Warrants. The
Company shall use its best efforts to cause the same to become effective and to maintain
the effectiveness of such registration statement, and a current prospectus relating
thereto, until the expiration of the Warrants in accordance with the provisions of this
Agreement. If any such post-effective amendment or registration statement has not been
declared effective by the 60th Business Day following the closing of the
Business




14









 






	 	 	 	Combination, holders of the Warrants shall have the right, during the period beginning on
the 61st Business Day after the closing of the Business Combination and ending
upon such post-effective amendment or registration statement being declared effective by
the Commission, and during any other period when the Company shall fail to have maintained
an effective registration statement covering the shares of Common Stock issuable upon
exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging
the Warrants (in accordance with Section 3(a)(9) of the Act or another exemption) for that
number of shares of Common Stock equal to the quotient obtained by dividing (x) the product
of the number of shares of the Common Stock underlying the Warrants, multiplied by the
difference between the Warrant Price and the “Fair Market Value” (as defined below) by (y)
the Fair Market Value. Solely for purposes of this Section 7.4, “Fair Market
Value” shall mean the volume weighted average price of the Common Stock as reported during
the ten (10) trading day period ending on the trading day prior to the date that notice of
exercise is received by the Warrant Agent from the holder of such Warrants or its
securities broker or intermediary. The date that notice of cashless exercise is received
by the Warrant Agent shall be conclusively determined by the Warrant Agent. The Company
shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be
an outside law firm with securities law experience) stating that (i) the exercise of the
Warrants on a cashless basis in accordance with this Section 7.4 is not required to
be registered under the Securities Act and (ii) the shares of the Common Stock issued upon
such exercise shall be freely tradable under United States federal securities laws by
anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities
Act) of the Company and, accordingly, shall not be required to bear a restrictive legend.
For the avoidance of any doubt, unless and until all of the Warrants have been exercised on
a cashless basis, the Company shall continue to be obligated to comply with its
registration obligations under the first three sentences of this Section 7.4. In
addition, the Company agrees to use its best efforts to register the shares of the Common
Stock issuable upon exercise of a Warrant under the blue sky laws of the states of
residence of the exercising Warrant holder to the extent an exemption is not available.






	8.	 	Concerning the Warrant Agent and Other Matters.






	 	8.1.	 	Payment of Taxes. The Company shall from time to time promptly pay all taxes
and charges that may be imposed upon the Company or the Warrant Agent in respect of the
issuance or delivery of shares of the Common Stock upon the exercise of the Warrants, but
the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or
such shares.
	 
	 	8.2.	 	Resignation, Consolidation, or Merger of Warrant Agent.






	 	8.2.1.	 	Appointment of Successor Warrant Agent. The Warrant Agent, or any successor
to it hereafter appointed, may resign its duties and be discharged from all further
duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the
Company. If the office of the Warrant Agent becomes vacant by resignation or
incapacity to act or otherwise, the Company shall appoint in writing a successor




15









 






	 	 	 	Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such
appointment within a period of thirty (30) days after it has been notified in writing
of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant
(who shall, with such notice, submit his Warrant for inspection by the Company), then
the holder of any Warrant may apply to the Supreme Court of the State of New York for
the County of New York for the appointment of a successor Warrant Agent at the
Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by
such court, shall be a corporation organized and existing under the laws of the State
of New York, in good standing and having its principal office in the Borough of
Manhattan, City and State of New York, and authorized under such laws to exercise
corporate trust powers and subject to supervision or examination by federal or state
authority. After appointment, any successor Warrant Agent shall be vested with all the
authority, powers, rights, immunities, duties, and obligations of its predecessor
Warrant Agent with like effect as if originally named as Warrant Agent hereunder,
without any further act or deed; but if for any reason it becomes necessary or
appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense
of the Company, an instrument transferring to such successor Warrant Agent all the
authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon
request of any successor Warrant Agent the Company shall make, execute, acknowledge,
and deliver any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such authority, powers, rights,
immunities, duties, and obligations.
	 
	 	8.2.2.	 	Notice of Successor Warrant Agent. In the event a successor Warrant Agent
shall be appointed, the Company shall give notice thereof to the predecessor Warrant
Agent and the Transfer Agent for the Common Stock not later than the effective date of
any such appointment.
	 
	 	8.2.3.	 	Merger or Consolidation of Warrant Agent. Any corporation into which the
Warrant Agent may be merged or with which it may be consolidated or any corporation
resulting from any merger or consolidation to which the Warrant Agent shall be a party
shall be the successor Warrant Agent under this Agreement without any further act.






	 	8.3.	 	Fees and Expenses of Warrant Agent.






	 	8.3.1.	 	Remuneration. The Company agrees to pay the Warrant Agent reasonable
remuneration for its services as such Warrant Agent hereunder and shall, pursuant to
its obligations under this Agreement, reimburse the Warrant Agent upon demand for all
expenditures that the Warrant Agent may reasonably incur in the execution of its duties
hereunder.
	 
	 	8.3.2.	 	Further Assurances. The Company agrees to perform, execute, acknowledge, and
deliver or cause to be performed, executed, acknowledged, and delivered all such
further and other acts, instruments, and assurances as may reasonably be required by




16









 






	 	 	 	the Warrant Agent for the carrying out or performing of the provisions of this
Agreement.






	 	8.4.	 	Liability of Warrant Agent.






	 	8.4.1.	 	Reliance on Company Statement. Whenever in the performance of its duties
under this Warrant Agreement, the Warrant Agent shall deem it necessary or desirable
that any fact or matter be proved or established by the Company prior to taking or
suffering any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively proved and
established by a statement signed by the President or Chairman of the Board of the
Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such
statement for any action taken or suffered in good faith by it pursuant to the
provisions of this Agreement.
	 
	 	8.4.2.	 	Indemnity. The Warrant Agent shall be liable hereunder only for its
own gross negligence, willful misconduct or bad faith. The Company agrees to indemnify
the Warrant Agent and save it harmless against any and all liabilities, including
judgments, costs and reasonable counsel fees, for anything done or omitted by the
Warrant Agent in the execution of this Agreement, except as a result of the Warrant
Agent’s gross negligence, willful misconduct or bad faith.
	 
	 	8.4.3.	 	Exclusions. The Warrant Agent shall have no responsibility with respect to
the validity of this Agreement or with respect to the validity or execution of any
Warrant (except its countersignature thereof). The Warrant Agent shall not be
responsible for any breach by the Company of any covenant or condition contained in
this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make
any adjustments required under the provisions of Section 4 hereof or
responsible for the manner, method, or amount of any such adjustment or the
ascertaining of the existence of facts that would require any such adjustment; nor
shall it by any act hereunder be deemed to make any representation or warranty as to
the authorization or reservation of any shares of the Common Stock to be issued
pursuant to this Agreement or any Warrant or as to whether any shares of the Common
Stock shall, when issued, be valid and fully paid and nonassessable.






	 	8.5.	 	Acceptance of Agency. The Warrant Agent hereby accepts the agency established
by this Agreement and agrees to perform the same upon the terms and conditions herein set
forth and among other things, shall account promptly to the Company with respect to
Warrants exercised and concurrently account for, and pay to the Company, all monies
received by the Warrant Agent for the purchase of shares of the Common Stock through the
exercise of the Warrants.
	 
	 	8.6.	 	Waiver. The Warrant Agent has no right of set-off or any other right, title,
interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account
(as defined in that certain Investment Management Trust Agreement, dated as of the date
hereof, by and between the Company and the Warrant Agent as trustee thereunder) and hereby




17









 






	 	 	 	agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against
the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all
Claims against the Trust Account and any and all rights to seek access to the Trust
Account.






	9.	 	Miscellaneous Provisions.






	 	9.1.	 	Successors. All the covenants and provisions of this Agreement by or for the
benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their
respective successors and assigns.
	 
	 	9.2.	 	Notices. Any notice, statement or demand authorized by this Warrant Agreement
to be given or made by the Warrant Agent or by the holder of any Warrant to or on the
Company shall be sufficiently given when so delivered if by hand or overnight delivery or
if sent by certified mail or private courier service within five (5) days after deposit of
such notice, postage prepaid, addressed (until another address is filed in writing by the
Company with the Warrant Agent), as follows:




Hicks Acquisition Company II, Inc.

100 Crescent Court, Suite 1200

Dallas, Texas 75201

Attention: Chief Executive Officer





	 	 	 	Any notice, statement or demand authorized by this Agreement to be given or made by the
holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently
given when so delivered if by hand or overnight delivery or if sent by certified mail or
private courier service within five (5) days after deposit of such notice, postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with the
Company), as follows:




Continental Stock Transfer & Trust Company

17 Battery Place

New York, New York 10004

Attention: Compliance Department





	 	9.3.	 	Applicable Law. The validity, interpretation, and performance of this
Agreement and of the Warrants shall be governed in all respects by the laws of the State of
New York, without giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The Company hereby agrees that
any action, proceeding or claim against it arising out of or relating in any way to this
Agreement shall be brought and enforced in the courts of the State of New York or the
United States District Court for the Southern District of New York, and irrevocably submits
to such jurisdiction, which jurisdiction shall be exclusive. The Company hereby waives any
objection to such exclusive jurisdiction and that such courts
represent an inconvenient
forum.




18









 






	 	9.4.	 	Persons Having Rights under this Agreement. Nothing in this Agreement shall be
construed to confer upon, or give to, any person or corporation other than the parties
hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by
reason of this Warrant Agreement or of any covenant, condition, stipulation, promise, or
agreement hereof. All covenants, conditions, stipulations, promises, and agreements
contained in this Warrant Agreement shall be for the sole and exclusive benefit of the
parties hereto and their successors and assigns and of the Registered Holders of the
Warrants.
	 
	 	9.5.	 	Examination of the Warrant Agreement. A copy of this Agreement shall be
available at all reasonable times at the office of the Warrant Agent in the Borough of
Manhattan, City and State of New York, for inspection by the Registered Holder of any
Warrant. The Warrant Agent may require any such holder to submit his Warrant for inspection
by it.
	 
	 	9.6.	 	Counterparts. This Agreement may be executed in any number of original or
facsimile counterparts and 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.
	 
	 	9.7.	 	Effect of Headings. The section headings herein are for convenience only and
are not part of this Warrant Agreement and shall not affect the interpretation thereof.
	 
	 	9.8.	 	Amendments. This Agreement may be amended by the parties hereto without the
consent of any Registered Holder for the purpose of curing any ambiguity, or curing,
correcting or supplementing any defective provision contained herein or adding or changing
any other provisions with respect to matters or questions arising under this Agreement as
the parties may deem necessary or desirable and that the parties deem shall not adversely
affect the interest of the Registered Holders. All other modifications or amendments,
including any amendment to increase the Warrant Price or shorten the Exercise Period and
any amendment to the terms of only the Sponsor Warrants, shall require the written consent
of the Registered Holders of 65% of the then outstanding Offering Warrants. Further, the
Sponsor shall not vote any Warrants owned or controlled by it in favor of such amendment
unless the Registered Holders of 65% of the Offering Warrants vote in favor of such
amendment. Notwithstanding the foregoing, the Company may lower the Warrant Price or
extend the duration of the Exercise Period pursuant to Sections 3.1 and
3.2, respectively, without the consent of the Registered Holders.
	 
	 	9.9.	 	Severability. This Warrant Agreement shall be deemed severable, and the
invalidity or unenforceability of any term or provision hereof shall not affect the
validity or enforceability of this Warrant Agreement or of any other term or provision
hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the
parties hereto intend that there shall be added as a part of this Warrant Agreement a
provision as




19









 






	 	 	 	similar in terms to such invalid or unenforceable provision as may be possible and be valid
and enforceable.
	 
	 	 	 	Exhibit A Form of Warrant Certificate

Exhibit B Legend – Sponsor’s Warrants





20









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of
the date first above written.



	 	 	 	 	 
	 	     HICKS ACQUISITION COMPANY II, INC.

 	 
	 	     By:  	 	 
	 	 	Robert M. Swartz 	 
	 	 	President and Chief Executive Officer 	 
	 
	 	CONTINENTAL STOCK TRANSFER & TRUST 

                    
        COMPANY, as Warrant Agent

 	 
	 	     By:  	 	 
	 	     Name:  	 	 
	 	     Title:  	 	 
	 




 









 





EXHIBIT A




[Form of Warrant Certificate]



[FACE]




Number




 





Warrants



 





THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO

THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT
AGREEMENT DESCRIBED BELOW




HICKS ACQUISITION COMPANY II, INC.

Incorporated Under the Laws of the State of Delaware



CUSIP                     




Warrant Certificate




     This Warrant Certificate certifies that                                         , or registered assigns, is
the registered holder of                      warrants (the “Warrants”) to purchase shares of Common Stock,
$.0001 par value (the “Common Stock”), of Hicks Acquisition Company II, Inc., a Delaware
corporation (the “Company”). Each Warrant entitles the holder, upon exercise during the period set
forth in the Warrant Agreement referred to below, to receive from the Company that number of fully
paid and nonassessable shares of the Common Stock (each, a “Warrant”) as set forth below, at the
exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in
lawful money (or through “cashless exercise” if permitted by the Warrant Agreement) of the United
States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at
the office or agency of the Warrant Agent referred to below, subject to the conditions set forth
herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined
herein shall have the meanings given to them in the Warrant Agreement.



     Each Warrant is initially exercisable for one fully paid and non-assessable share of the
Common Stock. The number of the Warrants issuable upon exercise of the Warrants is subject to
adjustment upon the occurrence of certain events set forth in the Warrant Agreement.



     The initial Exercise Price per share of the Common Stock for any Warrant is equal to $12.00
per share. The Exercise Price is subject to adjustment upon the occurrence of certain events set
forth in the Warrant Agreement.



 









 





     Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised
only during the Exercise Period and to the extent not exercised by the end of such Exercise Period,
such Warrants shall become void.



     Reference is hereby made to the further provisions of this Warrant Certificate set forth on
the reverse hereof and such further provisions shall for all purposes have the same effect as
though fully set forth at this place.



     This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such
term is used in the Warrant Agreement.



     This Warrant Certificate shall be governed and construed in accordance with the internal laws
of the State of New York, without regard to conflicts of laws principles thereof.



2









 





	 	 	 	 	 
	 	     HICKS ACQUISITION COMPANY II, INC.

 	 
	 	     By:  	 	 
	 	 	Robert M. Swartz 	 
	 	 	President and Chief Executive Officer 	 
	 
	 	CONTINENTAL STOCK TRANSFER & TRUST 

                           COMPANY, as Warrant Agent

 	 
	 	     By:  	 	 
	 	     Name:  	 	 
	 	     Title:  	 	 
	 	     Authorized Signatory 	 
	 








 









 








[Form of Warrant Certificate]




[Reverse]



          The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of
Warrants entitling the holder on exercise to receive shares of the Common Stock and are issued or
to be issued pursuant to a Warrant Agreement dated as of                     , 2010 (the “Warrant Agreement”),
duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New
York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby
incorporated by reference in and made a part of this instrument and is hereby referred to for a
description of the rights, limitation of rights, obligations, duties and immunities thereunder of
the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the
Registered Holders or Registered Holder) of the Warrants. A copy of the Warrant Agreement may be
obtained by the holder hereof upon written request to the Company. Defined terms used in this
Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant
Agreement.




          Warrants may be exercised at any time during the Exercise Period set forth in the Warrant
Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by
surrendering this Warrant Certificate, with the form of election to purchase set forth hereon
properly completed and executed, together with payment of the Exercise Price as specified in the
Warrant Agreement (or through “cashless exercise” if permitted by the Warrant Agreement) at the
principal corporate trust office of the Warrant Agent. In the event that upon any exercise of
Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of
Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee,
a new Warrant Certificate evidencing the number of Warrants not exercised. No adjustment shall be
made for any dividends on any of the Common Stock issuable upon exercise of this Warrant.




          Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant
may be exercised unless at the time of exercise (i) a
registration statement covering the shares of Common Stock
to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder
relating to the shares of Common Stock is current, except through “cashless exercise” if permitted by the Warrant
Agreement.




          The Warrant Agreement provides that upon the occurrence of certain events the number of the
Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon
exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in a
share of the Common Stock, the Company shall, upon exercise, round up to the nearest whole number
of shares of the Common Stock to be issued to the holder of the Warrant.




          Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant
Agent by the Registered Holder thereof in person or by legal representative or attorney duly
authorized in writing, may be exchanged, in the manner and subject to the limitations provided in
the Warrant Agreement, but without payment of any service charge, for






 









 







another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate
a like number of Warrants.




          Upon due presentation for registration of transfer of this Warrant Certificate at the office
of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing
in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for
this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without
charge except for any tax or other governmental charge imposed in connection therewith.




          The Company and the Warrant Agent may deem and treat the Registered Holder(s) thereof as the
absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other
writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the
holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall
be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate
entitles any holder hereof to any rights of a stockholder of the Company.









 









 








Election to Purchase




(To Be Executed Upon Exercise of Warrant)




     The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant
Certificate, to receive                      shares of the Common Stock and herewith tenders payment for such
shares to the order of Hicks Acquisition Company II, Inc. (the “Company”) in the amount of $    
                
in accordance with the terms hereof. The undersigned requests that a certificate for such shares
be registered in the name of                
     , whose address is             
         and
that such shares be delivered to                 
     whose address is               
                     
                     
    . If said number of shares is less than all of the shares of the Common
Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing
the remaining balance of such shares be registered in the name of            
         , whose address is
                      
                  , and that such Warrant Certificate be delivered to                     ,
whose address is                     .



     In the event that the Warrant has been called for redemption by the Company pursuant to
Section 6 of the Warrant Agreement and the Company has required cashless exercise pursuant
to Section 6.3 of the Warrant Agreement, the number of shares that this Warrant is
exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section
6.3 of the Warrant Agreement.



     In the event that the Warrant is a Sponsor Warrant that is to be exercised on a “cashless”
basis pursuant to subsections 3.3.1(c) of the Warrant Agreement, the number of shares that
this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c)
of the Warrant Agreement.



     In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section
7.4 of the Warrant Agreement, the number of shares that this Warrant is exercisable for shall
be determined in accordance with Section 7.4 of the Warrant Agreement.



     In the event that the Warrant (as such term is defined in the Warrant Agreement) may be
exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number
of shares that this Warrant is exercisable for would be determined in accordance with the
relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the
holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise
the right, represented by this Warrant Certificate, through the cashless exercise provisions of
Section ___ of the Warrant Agreement, to receive shares of the Common Stock. If said number
of shares is less than all of the shares of the Common Stock purchasable hereunder (after giving
effect to the cashless exercise), the undersigned requests that a new Warrant Certificate
representing the remaining balance of such shares be registered in the name of , whose address is ,
and that such Warrant Certificate be delivered to , whose address is        
             .





	 	 	 

	Date:       
              , 20___

	 	
	 

	 	 
	 

	 	(Signature)
	 
	 	 





 









 





	 	 	 

	 

	 	 
	 
	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	(Address)
	 
	 	 
	 

	 	 
	 

	 	(Tax Identification Number)






Signature Guaranteed:




                                                            




THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS,
SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15).




 









 





EXHIBIT B




LEGEND


THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, THE
SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS
THIRTY (30) DAYS AFTER THE DATE UPON WHICH HICKS ACQUISITION COMPANY II INC. (THE “COMPANY”)
COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT
REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 2 OF THE WARRANT
AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.



SECURITIES EVIDENCED BY THIS CERTIFICATE AND SHARES OF THE COMMON STOCK OF THE COMPANY ISSUED UPON
EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS
AGREEMENT TO BE EXECUTED BY THE COMPANY.




			
	 	 	 
	No.          
           
	 	         
            Warrants







Exhibit B