exv10w4






Exhibit 10.4




INVESTMENT MANAGEMENT TRUST AGREEMENT




     This Agreement is made effective as of                     , 2010 by and between Hicks Acquisition Company II,
Inc. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”).



     WHEREAS, the Company’s registration statement on Form S-1, No. 333-167809 (the “Registration
Statement”) and prospectus (the “Prospectus”) for the initial public offering of the Company’s
units (the “Units”), which consist of one share of the Company’s common stock, par value $0.0001
per share (the “Common Stock”) and one warrant to purchase the Company’s Common Stock (the
“Warrants”), (such initial public offering hereinafter referred to as the “Offering”) has been
declared effective as of the date hereof (the “Effective Date”) by the Securities and Exchange
Commission; and



     WHEREAS, the Company has entered into an Underwriting Agreement with Citigroup Global Markets
Inc. as representative of the several underwriters (the “Underwriters”) named therein (the
“Underwriting Agreement”); and



     WHEREAS, as described in the Registration Statement, $197,000,000 of the gross proceeds of the
Offering and sale of the Sponsor Warrants (as defined in the Underwriting Agreement) (or
$226,250,000 if the Underwriters’ over-allotment option is exercised in full) will be delivered to
the Trustee to be deposited and held in a segregated trust account (the “Trust Account”) for the
benefit of the Company and the holders of the Company’s Common Stock underlying the Units issued in
the Offering as hereinafter provided (the amount to be delivered to the Trustee will be referred to
hereinafter as the “Property,” the stockholders for whose benefit the Trustee shall hold the
Property will be referred to as the “Public Stockholders,” and the Public Stockholders and the
Company will be referred to together as the “Beneficiaries”); and



     WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the
terms and conditions pursuant to which the Trustee shall hold the Property.



     IT IS AGREED:


1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:




          (a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this
Agreement in the Trust Account at JP Morgan Chase, N.A. and at a brokerage institution selected by
the Trustee that is satisfactory to the Company;




          (b) Manage, supervise and administer the Trust Account subject to the terms and conditions set
forth herein;




          (c) In a timely manner, upon the written instruction of the Company invest and reinvest the
Property in United States government securities within the meaning of Section 2(a)(16) of the
Investment Company Act of 1940, as amended, having a maturity of 180 days or less, or in money
market funds meeting the conditions of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7
promulgated under the Investment Company Act of 1940, as amended, as determined by the Company;







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          (d) Collect and receive, when due, all interest arising from the Property, which shall become
part of the “Property,” as such term is used herein;




          (e) Promptly notify the Company and Citigroup Global Markets Inc. of all communications
received by the Trustee with respect to any Property requiring action by the Company;




          (f) Supply any necessary information or documents as may be requested by the Company (or its
authorized agents) in connection with the Company’s preparation of the tax returns relating to
assets held in the Trust Account;




          (g) Participate in any plan or proceeding for protecting or enforcing any right or interest
arising from the Property if, as and when instructed by the Company to do so;




          (h) Render to the Company monthly written statements of the activities of, and amounts in, the
Trust Account reflecting all receipts and disbursements of the Trust Account;








          (i) Commence liquidation of the Trust Account only after and promptly after receipt of, and
only in accordance with, the terms of a letter (“Termination Letter”), in a form substantially
similar to that attached hereto as either Exhibit A or Exhibit B signed on behalf
of the Company by its Chief Executive Officer or Chairman of the board of directors (the “Board”)
or other authorized officer of the Company, and complete the liquidation of the Trust Account and
distribute the Property in the Trust Account only as directed in the Termination Letter and the
other documents referred to therein. The Trustee understands and agrees that, except as provided
in this Section 1(i) and in Section 1(n), disbursements from the Trust Account shall be made only pursuant to
the terms of a duly executed Tax Payment Withdrawal Instruction, Tax Refund Instruction, Interest
Withdrawal Instruction or Permitted Purchase of Shares Withdrawal Instruction, as set forth in
Section 1(j), 1(k), 1(l) or 1(m), respectively, as the case may be;
provided, however, that in the event the Trustee receives a Termination Letter in
a form substantially similar to Exhibit B hereto, or if the Trustee begins to liquidate the
Property because it has received no such Termination Letter by                                         ,1 or on such other date
as may be determined in the Company’s certificate of incorporation following the liquidation of the
Property, the Trustee shall keep the Trust Account open until the earliest to occur of (i) twelve
(12) months following the date the Property has been distributed to the Public Stockholders; (ii)
the Trustee’s receipt of a letter in a form substantially similar to Exhibit D hereto; or
(iii) a written notice from the Company’s independent registered public accountants stating that
the Company will not be receiving any tax refund on its income tax obligation. The provisions of
this Section 1(i) may not be modified, amended or deleted under any circumstances;








          (j) Upon written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal
Instruction”), the Trustee shall distribute to the Company the amount requested by the Company to
cover any income or franchise tax obligation owed by the Company as a result of assets of the
Company or interest or other income earned on the funds held in the Trust






 




			
	1	 	Insert date that is 21 months from the closing of the Offering.




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Account, which amount shall be paid directly to the Company by electronic funds transfer or
other method of prompt payment, and the Company shall forward such payment to the relevant taxing
authority; provided, however, that to the extent there is not sufficient cash in
the Trust Account to pay such tax obligation, the Trustee shall liquidate such assets held in the
Trust Account as shall be designated by the Company in writing to make such distribution;
provided further that if the tax to be paid is a franchise tax, the written request
by the Company to make such distribution shall be accompanied by a copy of the franchise tax bill
from the State of Delaware and a written statement from the principal financial officer of the
Company setting forth the actual amount payable. The written request of the Company referenced
above shall constitute presumptive evidence that the Company is entitled to said funds, and the
Trustee has no responsibility to look beyond said request;




          (k) Upon written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit D (a “Tax Refund Instruction”),
the Trustee shall distribute to the Company’s Public Stockholders, less amounts to be disbursed to
the Company to cover accrued expenses as set forth in the Tax Refund Instruction, amounts deposited
by the Company into the Trust Account that the Company has represented to be tax refund(s) of the
Company’s income tax obligations;








          (l) Upon written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit E (an “Interest Withdrawal
Instruction”), the Trustee shall distribute to the Company the amount requested by the Company to
be used for working capital requirements; provided, however, that the aggregate
amount of all such distributions pursuant to this Section 1(l) shall not exceed $3,000,000
in interest income (net of franchise and income taxes payable), in the event the underwriters’
over-allotment option in the Offering is not exercised in full, or $3,450,000 in interest income
(net of franchise and income taxes payable), if the underwriters’ over-allotment option in the
Offering is exercised in full (or, if the over-allotment option is not exercised in full, but is
exercised in part, the amount in interest income (net of franchise and income taxes payable) to be
released shall be increased proportionally in relation to the proportion of the over-allotment
option which was exercised);












          (m) Upon written request from the Company, which may be given from time to time in a form
substantially similar to that attached hereto as Exhibit F (a “Permitted Purchase of Shares
Withdrawal Instruction”), the Trustee shall distribute to the Company the amount requested by the
Company to be used to purchase up to 3,000,000 shares of the Common Stock, in the event the
underwriters’ over-allotment option in the Offering is not exercised in full or up to 3,450,000
shares of the Common Stock in the event the underwriters’ over-allotment option in the Offering is
exercised in full, not to exceed the per share amount then held in the Trust Account (or, if the
over-allotment option is not exercised in full, but is exercised in part, the number of shares that
may be purchased shall be increased proportionally in relation to the proportion of the
over-allotment option which was exercised) (such purchase hereinafter referred to as the “Permitted
Purchases”); provided, however, that to the extent there is not sufficient cash in
the Trust Account to make such distribution the Trustee shall liquidate such assets held in the
Trust Account, as shall be designated by the Company in writing to make such distribution; and











          (n) If requested by the Company in connection with the delivery of the Termination Letter,
to the extent that there is any interest accrued on the Property held in the Trust Account not required to pay franchise and income taxes, the Trustee shall distribute to the Company an amount of up to $100,000 of
such accrued interest (as requested by the Company) to cover such dissolution costs and expenses.







2. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:








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          (a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s
Chairman of the Board, President, Chief Executive Officer or Chief Financial Officer. In addition,
except with respect to its duties under Sections 1(i) through 1(n) hereof, the
Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or
telephonic advice or instruction which it, in good faith and with reasonable care, believes to be
given by any one of the persons authorized above to give written instructions, provided that the
Company shall promptly confirm such instructions in writing;




          (b) Subject to Section 4 hereof, hold the Trustee harmless and indemnify the Trustee
from and against any and all expenses, including reasonable counsel fees and disbursements, or
losses suffered by the Trustee in connection with any action taken by it hereunder and in
connection with any action, suit or other proceeding brought against the Trustee involving any
claim, or in connection with any claim or demand, which in any way arises out of or relates to this
Agreement, the services of the Trustee hereunder, or the Property or any interest earned on the
Property, except for expenses and losses resulting from the Trustee’s gross negligence, fraud or
willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the
commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek
indemnification under this Section 2(b), it shall notify the Company in writing of such
claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to
conduct and manage the defense against such Indemnified Claim; provided that the Trustee
shall obtain the consent of the Company with respect to the selection of counsel, which consent
shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim
without the prior written consent of the Company, which such consent shall not be unreasonably
withheld. The Company may participate in such action with its own counsel;








          (c) Pay the Trustee the fees set forth on Schedule A hereto, including an initial acceptance
fee, an annual fee and a transaction processing fee for each disbursement made pursuant to
Sections 1(j), 1(l), 1(m) and 1(n), and the usual and customary service fees of
the Trustee as paying agent (“Paying Agent”) pursuant to Section 1(k) hereof, which fees
shall be subject to modification by the parties from time to time. It is expressly understood that
the Property shall not be used to pay such fees unless and until it is distributed to the Company
pursuant to Sections 1(j) through 1(n) hereof. The Company shall pay the Trustee
the initial acceptance fee and the first annual fee at the consummation of the Offering and
thereafter on the anniversary of the Effective Date. The Trustee shall refund to the Company the
annual fee (on a pro rata basis) with respect to any period after the liquidation of the Trust
Account. The Company shall not be responsible for any other fees or charges of the Trustee except
as set forth in this Section 2(c) and as may be provided in Section 2(b) hereof;








          (d) In connection with any vote of the Company’s Public Stockholders regarding 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”), provide to
the Trustee an affidavit or certificate of the inspector of elections for the stockholder meeting
verifying the vote of the Public Stockholders regarding such Business Combination;







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          (e) Provide Citigroup Global Markets Inc. with a copy of any Termination Letter(s) and/or any
other correspondence that the Company sends to the Trustee with respect to any proposed withdrawal
from the Trust Account promptly after it issues the same;




          (f) In the event the Company is entitled to receive a tax refund on its income tax obligation,
and promptly after the amount of such refund is determined on a final basis, provide the Trustee
with notice in writing (with a copy to Citigroup Global Markets Inc.) of the amount of such income
tax refund; and




          (g) Instruct the Trustee to make only those distributions that are permitted under this
Agreement, and refrain from instructing the Trustee to make any distributions that are not
permitted under this Agreement.



3. Limitations of Liability. The Trustee shall have no responsibility or liability for:




          (a) Taking any action with respect to the Property, other than as directed in Section
1 hereof and the Trustee shall have no liability to any party except for liability arising out
of the Trustee’s gross negligence, fraud or willful misconduct;




          (b) Instituting any proceeding for the collection of any principal and income arising from, or
institute, appear in or defend any proceeding of any kind with respect to, any of the Property
unless and until it shall have received instructions from the Company given as provided herein to
do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses
incident thereto;




          (c) Refunding any depreciation in principal of any Property;




          (d) Assuming that the authority of any person designated by the Company to give instructions
hereunder shall not be continuing unless provided otherwise in such designation, or unless the
Company shall have delivered a written revocation of such authority to the Trustee;




          (e) Any action taken or omitted by it, or any action suffered by it to be taken or omitted, in
good faith and in the Trustee’s best judgment, except for the Trustee’s gross negligence, fraud or
willful misconduct whether to the other parties hereto or anyone else. The Trustee may rely
conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion
or advice of counsel (including counsel chosen by the Trustee, which counsel may be Company’s
counsel), statement, instrument, report or other paper or document (not only as to its due
execution and the validity and effectiveness of its provisions, but also as to the truth and
acceptability of any information therein contained) to which the Trustee believes, in good faith
and with reasonable care, to be genuine and to be signed or presented by the proper person or
persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a
written instrument delivered to the Trustee, signed by the proper party or parties and, if the
duties or rights of the Trustee are affected, unless it shall give its prior written consent
thereto;




          (f) Verifying the accuracy of the information contained in the Registration Statement,







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          (g) Providing any assurance on any Business Combination entered into by the Company or any
other action taken by the Company as contemplated by the Registration Statement;




          (h) Filing information returns on behalf of the Trust Account with any local, state or federal
taxing authority or providing periodic written statements to the Company documenting the taxes
payable by the Company, if any, relating to any interest income earned on the Property;




          (i) Preparing, executing and filing tax reports, income or other tax returns and paying any
taxes with respect to any income earned by, and activities relating to, the Trust Account,
regardless of whether such tax is payable by the Trust Account or the Company, including, but not
limited to, income tax obligations (it being expressly understood that, as set forth in Section
1(j) hereof, if there is any income tax obligation relating to the income of the Property in
the Trust Account, then, only at the written instruction of the Company, the Trustee shall make
funds available in cash from the Property in the Trust Account in an amount specified by the
Company as owing to the applicable taxing authority), which amount shall be paid directly to the
Company by electronic funds transfer or other method of prompt payment, and the Company shall
forward such payment to the appropriate taxing authority; and




          (j) Verifying calculations, qualifying or otherwise approving the Company’s written requests
for distributions pursuant to Sections 1(j) through 1(n) hereof.



4. Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest
or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably
waives any Claim to, or to any monies in, the Trust Account that it may have in the future. In the
event the Trustee has any Claim against the Company under this Agreement, including, without
limitation, under Section 2(b) hereof, the Trustee shall pursue such Claim solely against
the Company and not against the Property or any monies in the Trust Account.



5. Termination. This Agreement shall terminate as follows:




          (a) If the Trustee gives written notice to the Company that it desires to resign under this
Agreement, the Company shall use its reasonable efforts to locate a successor trustee. At such
time that the Company notifies the Trustee that a successor trustee has been appointed by the
Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer
the management of the Trust Account to the successor trustee, including but not limited to the
transfer of copies of the reports and statements relating to the Trust Account, whereupon this
Agreement shall terminate; provided, however, that in the event that the Company
does not locate a successor trustee within ninety (90) days of receipt of the resignation notice
from the Trustee, the Trustee may submit an application to have the Property deposited with any
court in the State of New York or with the United States District Court for the Southern District
of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or




          (b) At such time that the Trustee has completed the liquidation of the Trust Account and its
obligations in accordance with the provisions of Section 1(i) hereof (which section may not
be amended under any circumstances) and distributed the Property in






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accordance with the provisions of the Termination Letter, thereafter this Agreement shall
terminate except with respect to Section 2(b).



6. Miscellaneous.




          (a) The Company and the Trustee each acknowledge that the Trustee will follow the security
procedures set forth below with respect to funds transferred from the Trust Account. The Company
and the Trustee will each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party immediately if it has
reason to believe unauthorized persons may have obtained access to such confidential information,
or of any change in its authorized personnel. In executing funds transfers, the Trustee shall rely
upon all information supplied to it by the Company, including, account names, account numbers, and
all other identifying information relating to a Beneficiary, Beneficiary’s bank or intermediary
bank. Except for any liability arising out of the Trustee’s gross negligence, fraud or willful
misconduct, the Trustee shall not be liable for any loss, liability or expense resulting from any
error in the information or transmission of the funds.




          (b) This Agreement shall be governed by and construed and enforced in accordance with 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. It may be executed in several
original or facsimile counterparts, each one of which shall constitute an original, and together
shall constitute but one instrument.




          (c) This Agreement contains the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof. Except for Section 1(i) hereof (which section may
not be amended under any circumstances), this Agreement or any provision hereof may only be
changed, amended or modified (other than to correct a typographical error) by a writing signed by
each of the parties hereto. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN ANY WAY RELATING TO
THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.




          (d) This Agreement or any provision hereof may only be changed, amended or modified pursuant
to Section 6(c) hereof with the Consent of the Public Stockholders; provided,
however, that no such change, amendment or modification may be made to Section 1(i)
hereof (which section may not be amended under any circumstances), it being the specific intention
of the parties hereto that each Public Stockholder is, and shall be, a third party beneficiary of
this Section 6(d) with the same right and power to enforce this Section 6(d) as
either of the parties hereto. For purposes of this Section 6(d), the “Consent of the
Public Stockholders” means receipt by the Trustee of a certificate from the inspector of elections
of the stockholder meeting certifying that either (a) the Public Stockholders of record as of a
record date established in accordance with Section 213(a) of the Delaware General Corporation Law,
as amended (“DGCL”) who hold sixty-five percent (65%) or more of all then outstanding
shares of the Common Stock, have voted in favor of such change, amendment or modification, or (b)
the Public Stockholders of record as of the record date who hold sixty-five percent (65%) or more
of all then outstanding shares of the Common Stock, have delivered to such entity a signed writing
approving such change, amendment or modification. Except for any liability arising out of the
Trustee’s gross negligence, fraud or willful misconduct, the Trustee may rely conclusively on the






7









 







certification from the inspector or elections referenced above and shall be relieved of all
liability to any party for executing the proposes amendment in reliance thereon.




          (e) The parties hereto consent to the jurisdiction and venue of any state or federal court
located in the City of New York, State of New York, for purposes of resolving any disputes
hereunder.




          (f) Any notice, consent or request to be given in connection with any of the terms or
provisions of this Agreement shall be in writing and shall be sent by express mail or similar
private courier service, by certified mail (return receipt requested), by hand delivery or by
facsimile transmission:



if to the Trustee, to:



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson or Frank DiPaolo

Fax No.: (212) 509-5150



if to the Company, to:



Hicks Acquisition Company II, Inc.

100 Crescent Court, Suite 1200

Dallas, Texas 75201

Attn: Robert M. Swartz

Fax No.: (214) 615-2221



in either case with a copy to:



Citigroup Global Markets Inc.

388 Greenwich Street

New York, New York 10013

Attn: General Counsel

Fax No.: (212) 816-7912



and



Akin Gump Strauss Hauer & Feld LLP

1700 Pacific Avenue, Suite 4100

Dallas, Texas 75201

Attn: James A. Deeken

Fax No.: (214) 969-4343



and




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Bingham McCutchen LLP

399 Park Avenue

New York, New York 10022

Attn: Ann F. Chamberlain

Fax No.: (212) 702-3604




          (g) Each of the Trustee and the Company hereby represents that it has the full right and power
and has been duly authorized to enter into this Agreement and to perform its respective obligations
as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims
or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any
funds in the Trust Account under any circumstance.




          (h) Each of the Company and the Trustee hereby acknowledge that the Public Stockholders,
solely for purposes of Sections 6(c) and 6(d) hereof, are third party beneficiaries
of this Agreement.



[Signature Page Follows]




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     IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement
as of the date first written above.



	 	 	 	 	 	 	 

	 	Continental Stock Transfer & Trust Company, as Trustee

	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:
	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	Hicks Acquisition Company II, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	 	 	Robert M. Swartz	 	 
	 

	 	 	 	President and Chief Executive Officer	 	 











 









 








SCHEDULE A




	 	 	 	 	 	 	 
	 	 	Time and method of	 	 
	Fee Item	 	payment	 	Amount
	Initial acceptance fee.

	 	Initial closing of
Offering by wire
transfer.
	 	$	1,000	 
	 
	 	 	 	 	 	 
	Annual fee.

	 	First year, initial
closing of Offering
by wire transfer;
thereafter on the
anniversary of the
effective date of
the Offering by wire
transfer or check.
	 	$	5,000	 
	 
	 	 	 	 	 	 
	Transaction processing
fee for disbursements
to Company under
Sections 1(j), 1(l) and
1(m).

	 	Deduction by Trustee
from accumulated
income following
disbursement made to
Company under
Section 2.
	 	$	250	 
	 
	 	 	 	 	 	 
	Paying Agent services
for distributions made
to shareholders
pursuant to Section
1(k).

	 	Liquidation of the
Trust Account
pursuant to Section
1(i) and
distribution of
income tax refunds,
as directed by the
Company pursuant
Section 1(k) and
letter instruction
in the form of
Exhibit D.
	 	Usual and customary
service fees from
time to time
applicable to Paying
Agent services of
Trustee.












 









 








EXHIBIT A




[Letterhead of Company]



[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman




			
	 Re:	 	Trust Account No.      Termination Letter




Gentlemen:




     Pursuant to Section 1(i) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                     , 2010 (“Trust Agreement”), this is to advise you that the Company has
entered into an agreement (“Business Agreement”) with                     (“Target Business”) to consummate a business
combination with Target Business (“Business Combination”) on or about [insert date]. The Company
shall notify you at least forty-eight (48) hours in advance of the actual date of the consummation
of the Business Combination (“Consummation Date”). Capitalized terms used but not defined herein
shall have the meanings set forth in the Trust Agreement.



     In accordance with the terms of the Trust Agreement, we hereby authorize you to commence to
liquidate all of the assets of the Trust Account on [insert date] , and to transfer the proceeds
into the trust checking account at JP Morgan Chase, N.A. to the effect that, on the Consummation
Date, all of funds held in the Trust Account will be immediately available for transfer to the
account or accounts that the Company shall direct on the Consummation Date. It is acknowledged and
agreed that while the funds are on deposit in the trust checking account at JP Morgan Chase, N.A.
awaiting distribution, the Company will not earn any interest or dividends.



     On the Consummation Date (i) counsel for the Company shall deliver to you written notification
that the Business Combination is in the process of being consummated (the “Notification”) and (ii)
the Company shall deliver to you a written instruction signed by the Company and Citigroup Global
Markets Inc. with respect to the transfer of the funds held in the Trust Account, (“Instruction
Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the Notification and the Instruction Letter, in accordance with
the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account
may not be liquidated by the Consummation Date without penalty, you will notify the Company in
writing of the same and the Company shall direct you as to whether such funds should remain in the
Trust Account and be distributed after the Consummation Date to the Company. Upon the distribution
of all the funds, net of any



 









 




payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account,
your obligations under the Trust Agreement shall be terminated.




     In the event that the Business Combination is not consummated on the Consummation Date
described in the notice thereof and we have not notified you on or before the original Consummation
Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the
Company, the funds held in the Trust Account shall be reinvested as provided in Section 1(c) of the
Trust Agreement on the business day immediately following the Consummation Date as set forth in the
notice as soon thereafter as possible.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	Hicks Acquisition Company II, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





cc: Citigroup Global Markets Inc.









 









 








EXHIBIT B




[Letterhead of Company]



[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman





			
	     Re:	 	Trust Account No.       Termination Letter         




Gentlemen:




     Pursuant to Section 1(i) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                     , 2010 (“Trust Agreement”), this is to advise you that the Company has
been unable to effect a business combination with a Target Company (“Business Combination”) within
the time frame specified in the Company’s Certificate of Incorporation, as described in the
Company’s Prospectus relating to the Offering. Capitalized terms used but not defined herein shall
have the meanings set forth in the Trust Agreement.







     In accordance with the terms of the Trust Agreement, [to the extent that there is any interest accrued on the Property held in the Trust Account as of the date hereof that is not required
to pay franchise and income taxes, the Company hereby request the release of [$               ] of such accrued interest to pay the costs and expenses associated with implementing its plan of dissolution. In accordance with the terms of the Trust Agreement,
you are hereby directed to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at: [WIRE INSTRUCTION INFORMATION].



In addition, following such distribution,]2 we hereby authorize you to liquidate all
of the assets in the Trust Account on                     20___and to transfer the total proceeds into the trust
checking account at JP Morgan Chase, N.A. to await distribution to the remaining Public
Stockholders. The Company has selected                     20 ___3 as the record date for the purpose of
determining the remaining Public Stockholders entitled to receive their share of the liquidation
proceeds. You agree to be the Paying Agent of record and, in your separate capacity as Paying
Agent, agree to distribute said funds directly to the Company’s remaining stockholders in
accordance with the terms of the Trust Agreement and the Certificate of Incorporation of the
Company. Upon the distribution of all the funds, net of any payments necessary for reasonable
unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust
Agreement shall be terminated, except to the extent otherwise provided in Section 1(k) of the Trust
Agreement.



	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	Hicks Acquisition Company II, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 












 




			
	2	 	Include if the Company does not have sufficient funds to cover the costs and expenses
associated with implementing its plan of dissolution and specify the amount requested
(not to exceed $100,000).
	3	 	Insert date that is 21 months from the closing of the Offering.




 









 









cc: Citigroup Global Markets Inc.









 









 








EXHIBIT C




[Letterhead of Company]



[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman





			
	          Re:	 	Trust Account No.           




Gentlemen:




     Pursuant to Section 1(j) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                                         , 2010 (“Trust Agreement”), the Company hereby requests that you
deliver to the Company $                                         of the interest income earned on the Property as of the date hereof.
Capitalized terms used but not defined herein shall have the meanings set forth in the Trust
Agreement.



     The Company needs such funds to pay for the tax obligations as set forth on the attached tax
return or tax statement. In accordance with the terms of the Trust Agreement, you are hereby
directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of
this letter to the Company’s operating account at:



[WIRE INSTRUCTION INFORMATION]




	 	 	 	 	 	 	 

	 	 	Very truly yours,	 	 
	 
	 	 	 	 	 	 
	 	 	Hicks Acquisition Company II, Inc.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 	 	 
	 

	 	Name:	 	 	 	 
	 

	 	Title:	 	 	 	 





cc: Citigroup Global Markets Inc.






 









 








EXHIBIT D

[Letterhead of Company]




[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman





			
	          Re:	 	Trust Account No.           




Gentlemen:




     Pursuant to Section 1(k) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                                         , 2010 (“Trust Agreement”), this is to advise you that the Company will be
receiving a refund in the amount of $                                         representing a portion of the taxes it paid to satisfy its
income tax obligation. Capitalized terms used but not defined herein shall have the meanings set
forth in the Trust Agreement.



     In accordance with the terms of the Trust Agreement, we hereby authorize you to deposit the
proceeds of such tax refund into the Trust Account, and to transfer the total proceeds to the trust
checking account at JP Morgan Chase, N.A. for immediate distribution, less amounts for accrued
expenses of the Company as set forth below, to the Company’s remaining Public Stockholders of
record as of the date on which the Company redeemed the shares of common stock sold in the
Offering; provided, that $                     shall instead be disbursed to the Company to cover accrued
expenses. You agree to be the Paying Agent of record and, in your separate capacity as Paying
Agent, agree to distribute said funds directly to the remaining Public Stockholders in accordance
with the terms of the Trust Agreement and the Certificate of Incorporation of the Company. Upon
the distribution of all the funds, net of any payments for reasonable unreimbursed expenses related
to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated:



[WIRE INSTRUCTION INFORMATION]




	 	 	 	 	 
	 	Very truly yours,



Hicks Acquisition Company II, Inc.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 



 









 






	 	 	 	 	 


cc: Citigroup Global Markets Inc.






 









 








EXHIBIT E

[Letterhead of Company]




[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman





			
	          Re:	 	Trust Account No.           




Gentlemen:




          Pursuant to Section 1(l) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of                                         , 2010 (“Trust Agreement”), this is to advise you that the Company hereby
requests that you deliver to the Company $                                         of the interest, net of franchise and income taxes
payable, earned on the Property as of the date hereof, which does not exceed, in the aggregate with
all such prior disbursements pursuant to Section 1(l), if any, the maximum amount set forth
in Section 1(l).




          The Company needs such funds to cover working capital requirements. In accordance with the
terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire
transfer) such funds promptly upon your receipt of this letter to the Company’s operating account
at:




[WIRE INSTRUCTION INFORMATION]




	 	 	 	 	 
	 	Very truly yours,



Hicks Acquisition Company II, Inc.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


cc: Citigroup Global Markets Inc.






 









 








EXHIBIT F

[Letterhead of Company]




[Insert date]



Continental Stock Transfer

& Trust Company

17 Battery Place

New York, New York 10004

Attn: Steven G. Nelson, Chairman





			
	          Re:	 	Trust Account No.           




Gentlemen:




          Pursuant to Section 1(m) of the Investment Management Trust Agreement between Hicks
Acquisition Company II, Inc. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of        , 2010 (“Trust Agreement”), this is to advise you that the Company hereby
requests that you deliver to the Company $        to fund the Permitted Purchases (as defined in the Trust
Agreement).




          In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to
transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s
operating account at:




[WIRE INSTRUCTION INFORMATION]




	 	 	 	 	 
	 	Very truly yours,



Hicks Acquisition Company II, Inc.

 	 
	 	By:  	 	 
	 	Name:  	 	 	 
	 	Title:  	 	 	 
	 


cc: Citigroup Global Markets Inc.