Attached files
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8-K - FORM 8-K - Hicks Acquisition CO II, Inc. | d76943e8vk.htm |
EX-3.2 - EX-3.2 - Hicks Acquisition CO II, Inc. | d76943exv3w2.htm |
EX-4.1 - EX-4.1 - Hicks Acquisition CO II, Inc. | d76943exv4w1.htm |
EX-10.1 - EX-10.1 - Hicks Acquisition CO II, Inc. | d76943exv10w1.htm |
Exhibit 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
HICKS ACQUISITION COMPANY II, INC.
CERTIFICATE OF INCORPORATION
OF
HICKS ACQUISITION COMPANY II, INC.
Hicks Acquisition Company II, Inc., a corporation organized and existing under the laws of the
State of Delaware (the Corporation), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is Hicks Acquisition Company II, Inc. The Corporation was
originally incorporated under the name Hicks Acquisition Company II, Inc. and the original
certificate of incorporation was filed with the Secretary of State of the State of Delaware on June
15, 2010 (the Original Certificate).
2. This Amended and Restated Certificate of Incorporation (the Amended and Restated
Certificate) was duly adopted by the Board of Directors of the Corporation (the Board) and the
stockholders of the Corporation in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware.
3. This Amended and Restated Certificate restates, integrates and further amends the
provisions of the Original Certificate.
4. Certain capitalized terms used in this Amended and Restated Certificate are defined where
appropriate herein.
5. The text of the Original Certificate is hereby restated and amended in its entirety to read
as follows:
ARTICLE I
NAME
NAME
The name of the corporation is Hicks Acquisition Company II, Inc. (the Corporation).
ARTICLE II
PURPOSE
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the State of Delaware (the
DGCL). In addition to the powers and privileges conferred upon the Corporation by law and those
incidental thereto, the Corporation shall possess and may exercise all the powers and privileges
that are necessary or convenient to the conduct, promotion or attainment of the business or
purposes of the Corporation including, but not limited to, effecting a merger, capital stock
exchange, asset acquisition, stock purchase, reorganization or similar business combination,
involving the Corporation and one or more businesses (a Business Combination).
ARTICLE III
REGISTERED AGENT
REGISTERED AGENT
The address of the registered office of the Corporation in the State of Delaware is 2711
Centerville Road, Suite 400, City of Wilmington, County of New Castle, and the name of the
Corporations registered agent at such address is Corporation Service Company.
ARTICLE IV
CAPITALIZATION
CAPITALIZATION
Section 4.1 Authorized Capital Stock.
The total number of shares of all classes of capital stock which the Corporation is authorized
to issue is 501,000,000 shares, consisting of 500,000,000 shares of common stock, par value $0.0001
per share (the Common Stock), and 1,000,000 shares of preferred stock, par value $0.0001 per
share (the Preferred Stock).
Section 4.2 Preferred Stock. Subject to Article IX of this Amended and Restated
Certificate, the Preferred Stock may be issued from time to time in one or more series. The Board
is hereby expressly authorized to provide for the issuance of shares of the Preferred Stock in one
or more series and to establish from time to time the number of shares to be included in each such
series and to fix the voting rights, if any, designations, powers, preferences and relative,
participating, optional and other special rights, if any, of each such series and any
qualifications, limitations and restrictions thereof, as shall be stated in the resolution or
resolutions adopted by the Board providing for the issuance of such series and included in a
certificate of designations (a Preferred Stock Designation) filed pursuant to the DGCL, and the
Board is hereby expressly vested with the authority to the full extent provided by law, now or
hereafter, to adopt any such resolution or resolutions.
Section 4.3 Common Stock.
(a) The holders of shares of Common Stock shall be entitled to one vote for each such share on
each matter properly submitted to the stockholders on which the holders of the Common Stock are
entitled to vote. Except as otherwise required by law or this Amended and Restated Certificate
(including any Preferred Stock Designation), at any annual or special meeting of the stockholders
of the Corporation, the holders of the Common Stock shall have the exclusive right to vote for the
election of directors and on all other matters properly submitted to a vote of the stockholders.
Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated
Certificate (including a Preferred Stock Designation), the holders of the Common Stock shall not be
entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment
to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding
series of the Preferred Stock if the holders of such affected series are entitled, either
separately or together with the holders of one or more other such series, to vote thereon pursuant
to this Amended and Restated Certificate (including any Preferred Stock Designation).
(b) Subject to the rights, if any, of the holders of any outstanding series of Preferred
Stock and the provisions of Article IX hereof, the holders of the Common Stock shall be entitled
to receive such dividends and other distributions (payable in cash, property or capital stock
of the Corporation) when, as and if declared thereon by the Board from time to time out of any
assets or funds of the Corporation legally available therefor, and shall share equally on a per
share basis in such dividends and distributions.
(c) Subject to the rights, if any, of the holders of any outstanding series of the Preferred
Stock and the provisions of Article IX hereof, in the event of any voluntary or involuntary
liquidation, dissolution or winding-up of the Corporation, after payment or provision for payment
of the debts and other liabilities of the Corporation, the holders of the Common Stock shall be
entitled to receive all the remaining assets of the Corporation available for distribution to its
stockholders, ratably in proportion to the number of shares of the Common Stock held by them.
Section 4.4 Rights and Options.
The Corporation has the authority to create and issue rights, warrants and options entitling
the holders thereof to purchase shares of any class or series of the Corporations capital stock or
other securities of the Corporation, and such rights, warrants and options shall be evidenced by
instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration,
times for exercise and other terms and conditions of such rights, warrants or options;
provided, however, that the consideration to be received for any shares of capital
stock subject thereto may not be less than the par value thereof.
ARTICLE V
BOARD OF DIRECTORS
BOARD OF DIRECTORS
Section 5.1 Board Powers.
The business and affairs of the Corporation shall be managed by, or under the direction of,
the Board. In addition to the powers and authority expressly conferred upon the Board by statute,
this Amended and Restated Certificate or the Bylaws (Bylaws) of the Corporation, the Board is
hereby empowered to exercise all such powers and do all such acts and things as may be exercised or
done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and
Restated Certificate and any Bylaws adopted by the stockholders; provided,
however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior
act of the Board that would have been valid if such Bylaws had not been adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other than those who may be elected by the
holders of one or more series of the Preferred Stock voting separately by class or series, shall be
fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of
the Whole Board. For purposes of this Amended and Restated Certificate, Whole Board shall mean
the total number of directors the Corporation would have if there were no vacancies.
(b) Subject to Section 5.5 hereof, the Board shall be divided into three classes, as
nearly equal in number as possible and designated Class I, Class II and Class III. The Board is
authorized to assign members of the Board already in office to Class I, Class II or Class III.
The term of the initial Class I Directors shall expire at the first annual meeting of the
stockholders of the Corporation following the effectiveness of this Amended and Restated
Certificate; the term of the initial Class II Directors shall expire at the second annual meeting
of the stockholders of the Corporation following the effectiveness of this Amended and Restated
Certificate; and the term of the initial Class III Directors shall expire at the third annual
meeting of the stockholders of the Corporation following the effectiveness of this Amended and
Restated Certificate. At each succeeding annual meeting of the stockholders of the Corporation,
beginning with the first annual meeting of the stockholders of the Corporation following the
effectiveness of this Amended and Restated Certificate, successors to the class of directors whose
term expires at that annual meeting shall be elected for a three-year term. Subject to Section
5.5 hereof, if the number of directors is changed, any increase or decrease shall be
apportioned by the Board among the classes so as to maintain the number of directors in each class
as nearly equal as possible, but in no case shall a decrease in the number of directors shorten the
term of any incumbent director.
(c) Subject to Section 5.5 hereof, a director shall hold office until the annual
meeting for the year in which his or her term expires and until his or her successor has been
elected and qualified, subject, however, to such directors earlier death, resignation, retirement,
disqualification or removal.
(d) Unless and except to the extent that the Bylaws shall so require, the election of
directors need not be by written ballot.
Section 5.3 Newly Created Directorships and Vacancies.
Subject to Section 5.5 hereof, newly created directorships resulting from an increase
in the number of directors and any vacancies on the Board resulting from death, resignation,
retirement, disqualification, removal or other cause may be filled solely by a majority vote of the
remaining directors then in office, even if less than a quorum, or by a sole remaining director
(and not by stockholders), and any director so chosen shall hold office for the remainder of the
full term of the class of directors to which the new directorship was added or in which the vacancy
occurred and until his or her successor has been elected and qualified, subject, however, to such
directors earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Removal.
Subject to Section 5.5 hereof, any or all of the directors may be removed from office
at any time, but only for cause and only by the affirmative vote of holders of a majority of the
voting power of all then outstanding shares of capital stock of the Corporation entitled to vote
generally in the election of directors, voting together as a single class.
Section 5.5 Preferred Stock Directors.
Notwithstanding any other provision of this Article V, and except as otherwise required by
law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting
separately by class or series, to elect one or more directors, the term of office, the filling of
vacancies, the removal from office and other features of such directorships shall be governed
by the terms of such series of the Preferred Stock as set forth in this Amended and Restated
Certificate (including any Preferred Stock Designation) and such directors shall not be included in
any of the classes created pursuant to this Article V unless expressly provided by such terms.
ARTICLE VI
BYLAWS
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall
have the power to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of
the Whole Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may
be adopted, amended, altered or repealed by the stockholders; provided, however,
that in addition to any vote of the holders of any class or series of capital stock of the
Corporation required by law or by this Amended and Restated Certificate (including any Preferred
Stock Designation), the affirmative vote of the holders of at least a majority of the voting power
of all then outstanding shares of capital stock of the Corporation entitled to vote generally in
the election of directors, voting together as a single class, shall be required for the
stockholders to adopt, amend, alter or repeal the Bylaws.
ARTICLE VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
Section 7.1 Meetings.
Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to
the requirements of applicable law, special meetings of stockholders of the Corporation may be
called only by the Chairman of the Board, Chief Executive Officer of the Corporation, or the Board
pursuant to a resolution adopted by a majority of the Whole Board, and the ability of the
stockholders to call a special meeting is hereby specifically denied.
Section 7.2 Advance Notice.
Advance notice of stockholder nominations for the election of directors and of business to be
brought by stockholders before any meeting of the stockholders of the Corporation shall be given in
the manner provided in the Bylaws.
Section 7.3 Action by Written Consent.
Subsequent to the consummation of the Offering, any action required or permitted to be taken
by the stockholders of the Corporation must be effected by a duly called annual or special meeting
of such holders and may not be effected by written consent of the stockholders.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director Liability.
A director of the Corporation shall not be liable to the Corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, except to the extent such exemption
from liability or limitation thereof is not permitted under the DGCL as the same exists or may
hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not
adversely affect any right or protection of a director of the corporation hereunder in respect of
any act or omission occurring prior to the time of such amendment, modification or repeal.
Section 8.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be
amended, the Corporation shall indemnify and hold harmless each person who is or was made a party
or is threatened to be made a party to or is otherwise involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
proceeding) by reason of the fact that he or she is or was a director or officer of the
Corporation or, while a director or officer of the Corporation, is or was serving at the request of
the Corporation as a director, officer, employee or agent of another corporation or of a
partnership, joint venture, trust, other enterprise or nonprofit entity, including service with
respect to an employee benefit plan (an indemnitee), whether the basis of such proceeding is
alleged action in an official capacity as a director, officer, employee or agent, or in any other
capacity while serving as a director, officer, employee or agent, against all liability and loss
suffered and expenses (including, without limitation, attorneys fees, judgments, fines, ERISA
excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee
in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by
applicable law pay the expenses (including attorneys fees) incurred by an indemnitee in defending
or otherwise participating in any proceeding in advance of its final disposition;
provided, however, that, to the extent required by applicable law, such payment of
expenses in advance of the final disposition of the proceeding shall be made only upon receipt of
an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall
ultimately be determined that the indemnitee is not entitled to be indemnified under this
Section 8.2 or otherwise. The rights to indemnification and advancement of expenses
conferred by this Section 8.2 shall be contract rights and such rights shall continue as to
an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the
benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing
provisions of this Section 8.2(a), except for proceedings to enforce rights to
indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses
to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee
only if such proceeding (or part thereof) was authorized by the Board.
(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by
this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or
hereafter acquire under law, this Amended and Restated Certificate, the By-Laws, an agreement, vote
of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation
or by changes in law, or the adoption of any other provision of this Amended and Restated
Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be
prospective only (except to the extent such amendment or change in law permits the Corporation to
provide broader indemnification rights on a retroactive basis than permitted prior thereto), and
shall not in any way diminish or adversely affect any right or protection existing at the time of
such repeal or amendment or adoption of such inconsistent provision in respect of any
proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising
out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption
of such inconsistent provision.
(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and
in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other
than indemnitees.
ARTICLE IX
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
Section 9.1 General.
(a) The provisions of this Article IX shall apply during the period commencing upon the
effectiveness of this Amended and Restated Certificate of Incorporation and terminating upon the
consummation of the Corporations initial Business Combination and may be amended to be effective
prior to the consummation of the initial Business Combination, only by the affirmative vote of the
holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock.
(b) Immediately after the Corporations initial public offering (the Offering), a certain
amount of the net offering proceeds received by the Corporation in the Offering (including the
proceeds of any exercise of the underwriters over-allotment option) and certain other amounts
specified in the Corporations registration statement on Form S-1, as initially filed with the
Securities and Exchange Commission on June 28, 2010, as amended (the Registration Statement),
shall be deposited in a trust account established by the Corporation (the Trust Account),
pursuant to a trust agreement described in the Registration Statement. Purchasers of the
Corporations Common Stock in the Offering or in the secondary market following the Offering
(whether or not such purchasers are affiliates of the Sponsor) are referred to herein as Public
Stockholders.
Section 9.2 Redemption Rights.
(a) Prior to the consummation of the initial Business Combination, the Corporation shall
provide all holders of shares of the Common Stock sold as part of the units in the Offering (the
Offering Shares) with the opportunity to have their Offering Shares redeemed pursuant to, and
subject to the limitations of, Sections 9.2(b) and 9.2(c) (such rights of such
holders to have their Offering Shares redeemed pursuant to such Sections, the Redemption Rights)
hereof for cash equal to the applicable redemption price per share determined in accordance with
Section 9.2(b) hereof (the Redemption Price); provided, however, that
the Corporation shall not redeem or repurchase Offering Shares to the extent that such redemption would result in
the Corporations failure to have net tangible assets (as determined in accordance with Rule
3a55-1(g)(1) of the Securities Exchange Act of 1934, as amended (the Exchange Act)) in excess of
$5 million ( such limitation hereinafter called the Redemption Limitation). Notwithstanding
anything to the contrary contained in this Amended and Restated Certificate, there shall be no
Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the
Offering.
(b) The Corporation may offer to redeem the Offering Shares, subject to lawfully available
funds therefor, prior to the consummation of the initial Business Combination in accordance with
the provisions of Section 9.2(a) hereof pursuant to a tender offer in accordance with Rule
13e-4 and Regulation 14E of the Exchange Act, (such rules and regulations hereinafter called the
Tender Offer Rules); provided, however, that if a stockholder vote is required by
law to approve the proposed initial Business Combination, or the Corporation decides to hold a
stockholder vote on the proposed initial Business Combination for business or other legal reasons,
the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds
therefor, in accordance with the provisions of Section 9.2(a) hereof in conjunction with a
proxy solicitation pursuant to applicable Securities and Exchange Commission proxy rules at a price
per share equal to the Redemption Price calculated in accordance with the following provisions of
this Section 9.2(b). In the event that the Corporation offers to redeem the Offering
Shares pursuant to a tender offer in accordance with the Tender Offer Rules, the Redemption Price
per share of the Common Stock payable to holders of the Offering Shares tendering their Offering
Shares pursuant to such tender offer shall be equal to the quotient obtained by dividing (i) the
aggregate amount on deposit in the Trust Account as of the commencement of the tender offer plus
interest accrued from the date of the commencement of such tender offer until two business days
prior to the consummation of the initial Business Combination, less franchise and income taxes
payable, by (ii) the total number of then outstanding Offering Shares. If the Corporation offers
to redeem the Offering Shares in conjunction with a stockholder vote on the proposed initial
Business Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common
Stock payable to holders of the Offering Shares exercising their Redemption Rights shall be equal
to the quotient obtained by dividing (i) the aggregate amount on deposit in the Trust Account as of
two business days prior to the consummation of the initial Business Combination, less franchise and
income taxes payable, by (ii) the total number of then outstanding Offering Shares.
(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder
vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder,
together with any affiliate of such stockholder or any other person with whom such stockholder is
acting in concert or as a group (as defined under Section 13(d)(3) of the Exchange Act), shall be
restricted from seeking Redemption Rights with respect to more than an aggregate of 10% of the
Offering Shares.
(d) In the event that the Corporation has not consummated a Business Combination within 21
months from the closing of the Offering, the Corporation shall (i) cease all operations except for
the purpose of winding up, (ii) as promptly as reasonably possible, subject to lawfully available
funds therefor, redeem 100% of the Offering Shares in consideration of (A) at a per-share price,
payable in cash, equal to the quotient obtained by dividing (x) the aggregate amount then on
deposit in the Trust Account less franchise and income taxes payable (less up to $100,000 of
interest to pay dissolution expenses), by (y) the total number of then outstanding Offering Shares,
and (B) a contingent contractual right to receive, following the dissolution of the Corporation, a
pro rata share of the balance of the Corporations net assets, if any, that would otherwise be
payable to the common stockholders of the Corporation in such dissolution under the DGCL, and (iii)
as promptly as reasonably possible following such redemptions, subject to
the approval of the stockholders and the Board in accordance with applicable law, dissolve and
liquidate, subject in each case to the Corporations obligations under the DGCL to provide for
claims of creditors and other requirements of applicable law.
(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder
vote on an initial Business Combination, the Corporation shall consummate the proposed Business
Combination only if such initial Business Combination is approved by the affirmative vote of the
holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting
held to consider such initial Business Combination.
Section 9.3 Distributions from the Trust Account
(a) A Public Stockholder shall be entitled to receive funds from the Trust Account only (i) as
provided in Section 9.2(d) hereof or (ii) as provided in Sections 9.2(a) and
9.2(b) hereof. In no other circumstances shall a Public Stockholder have any right or
interest of any kind in or to distributions from the Trust Account, and no stockholder other than a
Public Stockholder shall have any interest in or to the Trust Account.
(b) Payment of the amounts necessary to satisfy the Redemption Rights exercised shall be made
as promptly as practical after the consummation of the initial Business Combination and the
delivery of shares by the applicable stockholder.
(c) Each Public Stockholder that does not exercise its Redemption Rights shall retain its
interest in the Corporation and shall be deemed to have given its consent to the release of the
remaining funds in the Trust Account to the Corporation, and following payment to any Public
Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be
released to the Corporation.
(d) The exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such
Public Stockholder following the specific procedures for redemptions set forth by the Corporation
in any applicable tender offer or proxy statement materials sent to the Corporations Public
Stockholders relating to the proposed initial Business Combination.
(e) Notwithstanding anything to the contrary in this Article IX, but subject to the
Redemption Limitation, if the Corporation seeks stockholder approval of an initial Business
Combination, prior to the consummation thereof, the Corporation may instruct the trustee under the
Trust Agreement that amounts necessary to purchase up to 15% of the Offering Shares at any time
commencing after the filing of a preliminary proxy statement for the initial Business Combination
and ending on the record date for the stockholder meeting to approve such initial Business
Combination (such purchases being referred to herein as Open Market Purchases) be
released to the Corporation from the Trust Account. Such Open Market Purchases may be made only
at per share prices (inclusive of commissions) that do not exceed an amount equal to (A) the
aggregate amount then on deposit in the Trust Account divided by (B) the total number of Offering
Shares then outstanding. Any Offering Shares so purchased shall be immediately cancelled.
Section 9.4 Share Issuances.
Prior to the consummation of the Corporations initial Business Combination, the Corporation
shall not issue any additional shares of capital stock of the Corporation that would entitle the
holders thereof to receive funds from the Trust Account or vote on any Business Combination.
Section 9.5 Transactions with Affiliates
In the event the Corporation enters into a Business Combination with a target business that is
affiliated with HH-HACII, L.P., or the directors or officers of the Corporation, the Corporation,
or a committee of the independent directors of the Corporation, shall obtain an opinion from an
independent investment banking firm that is a member of Financial Industry Regulatory Authority
that such Business Combination is fair to the Corporation from a financial point of view; provided, however, that the Corporation shall not enter into a Business Combination with any such
affiliate that is engaged in the business of owning or operating a professional sports team as its
principal business.
ARTICLE X
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
AMENDMENT OF AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
The Corporation reserves the right to amend, alter, change or repeal any provision contained
in this Amended and Restated Certificate (including any Preferred Stock Designation), in the manner
now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, except as
set forth in Article VIII, all rights, preferences and privileges herein conferred upon
stockholders, directors or any other persons by and pursuant to this Amended and Restated
Certificate in its present form or as hereafter amended are granted subject to the right reserved
in this Article X; provided, however, that Article IX of this Amended and Restated
Certificate may be amended only as provided therein.
IN WITNESS WHEREOF, Hicks Acquisition Company II, Inc. has caused this Amended and Restated
Certificate to be duly executed in its name and on its behalf by its President and Chief Executive
Officer this 8th day of October, 2010.
HICKS ACQUISITION COMPANY II, INC. |
||||
By: | /s/ Robert M. Swartz | |||
Robert M. Swartz | ||||
President and Chief Executive Officer. | ||||