exv10w9






Exhibit 10.9




      NATIONAL

     SECURITIES



     
     Member FINRA/SIPC



	 	 	 
	 
	 	 
	 

	 	Investment Banking Group
	 

	 	Mergers & Acquisitions Division
	 

	 	330 Madison Avenue, 18th floor
	 

	 	New York, NY 10022
	 

	 	ph: (212) 380.2886
	 

	 	cell (1): (585) 233.2428
	 

	 	cell (2): (917) 692.9817
	 

	 	fax: (646) 304.6817
	 

	 	Kenneth K. Conte
	 

	 	Managing Director






October 19, 2009




Mr. Michael Galvis

Chief Executive Officer

NYTEX Energy Holdings, Inc

12222 Merit Drive, Suite 1850

Dallas, TX 75251




PERSONAL & CONFIDENTIAL




Dear Michael:



This letter amends the existing engagement agreement dated August 4, 2009 between NYTEX Energy
Holdings, Inc (the “Company”) and National Securities Corporation (“National”) with the following:



During the term of its engagement, National will provide such financial advice and assistance in
connection with the potential acquisition of Francis Drilling Fluids, Ltd including the acquisition
of the holding company; Francis Oaks, LLC (the “Target Company(s)”) for the (“Transaction”) as the
Company may reasonably request, which may include searching for control private equity groups,
advising and assisting the Company in evaluating the various structures and forms of the purchase,
assisting in the evaluation of the offer and assisting the Company in negotiating the financial
aspects of a Transaction.



As consideration for National’s services in this Transaction, the Company shall pay to National
the sum of the following compensation at Closing of the Transaction which shall be defined as the
(“Transaction Fee”):




New
York ♦ Boca Raton ♦ Chicago ♦ Dallas ♦
Rochester














 





			
	 	 	 
	October 19, 2009
	 	Page 2






Transaction
Fee Grid — Francis Drilling Fluids, Ltd Acquisition




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	2010E	 	Transaction	 	Transaction	 	TransactionFee Earned with	 	Transaction
	EBITDA	 	Multiple	 	Value	 	Francis Drilling Fluids, Ltd	 	Fee
	 	 	 	 	 	 	 	 	 	 	2.75%	 	2.50%	 	2.25%	 	2.00%	 	1.75%	 	1.50%	 	 	 	 
	   $10,000,000
	 	 	2.50x	 	 	$	25,000,000	 	 	$	1,100,000	 	 	$	95,000	 	 	$	90,000	 	 	$	85,000	 	 	$	80,000	 	 	$	75,000	 	 	$	1,525,000	 
	10,000,000
	 	 	2.55x	 	 	 	25,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.60x	 	 	 	26,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.65x	 	 	 	26,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.70x	 	 	 	27,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.75x	 	 	 	27,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.80x	 	 	 	28,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.85x	 	 	 	28,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.90x	 	 	 	29,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	2.95x	 	 	 	29,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	3.00x	 	 	 	30,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	75,000	 	 	 	1,525,000	 
	10,000,000
	 	 	3.05x	 	 	 	30,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	 	 	 	 	1,450,000	 
	10,000,000
	 	 	3.10x	 	 	 	31,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	 	 	 	 	1,450,000	 
	10,000,000
	 	 	3.15x	 	 	 	31,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	 	 	 	 	1,450,000	 
	10,000,000
	 	 	3.20x	 	 	 	32,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	80,000	 	 	 	 	 	 	 	1,450,000	 
	10,000,000
	 	 	3.25x	 	 	 	32,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	 	 	 	 	 	 	 	 	1,370,000	 
	10,000,000
	 	 	3.30x	 	 	 	33,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	 	 	 	 	 	 	 	 	1,370,000	 
	10,000,000
	 	 	3.35x	 	 	 	33,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	—	 	 	 	—	 	 	 	1,370,000	 
	10,000,000
	 	 	3.40x	 	 	 	34,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	85,000	 	 	 	 	 	 	 	 	 	 	 	1,370,000	 
	10,000,000
	 	 	3.45x	 	 	 	34,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,285,000	 
	10,000,000
	 	 	3.50x	 	 	 	35,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,285,000	 
	10,000,000
	 	 	3.55x	 	 	 	35,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,285,000	 
	10,000,000
	 	 	3.60x	 	 	 	36,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	90,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,285,000	 
	10,000,000
	 	 	3.65x	 	 	 	36,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,195,000	 
	10,000,000
	 	 	3.70x	 	 	 	37,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,195,000	 
	10,000,000
	 	 	3.75x	 	 	 	37,500,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,195,000	 
	10,000,000
	 	 	3.80x	 	 	 	38,000,000	 	 	 	1,100,000	 	 	 	95,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,195,000	 
	10,000,000
	 	 	3.85x	 	 	 	38,500,000	 	 	 	1,100,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,100,000	 
	10,000,000
	 	 	3.90x	 	 	 	39,000,000	 	 	 	1,100,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,100,000	 
	10,000,000
	 	 	3.95x	 	 	 	39,500,000	 	 	 	1,100,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,100,000	 
	10,000,000
	 	 	4.00x	 	 	 	40,000,000	 	 	 	1,100,000	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	1,100,000	 






New York ♦ Boca Raton ♦ Chicago ♦ Dallas ♦ Rochester

















 





			
	October 19, 2009
	 	Page 3






     For purposes of this Agreement, the term “Transaction Value” means collectively:
(i) the total amount of cash paid, directly or indirectly, for the assets, business
or capital stock of the Target Company(s); (ii) the fair market value of any assets,
securities or other property or rights transferred, directly or indirectly, in
payment for the assets, business or stock of the Target Company(s) (including,
without limitation, payments made under non-competition or similar arrangements and
any deferred or contingent payments) Contingent payments shall be used only if there
is sufficient evidence that these payments will be made, and (iii) the principal
amount of any indebtedness for borrowed money appearing on the most recent balance
sheet of the Target Company(s) prior to the consummation of the Transaction that
remains outstanding following consummation of the Transaction. If, in lieu of
receiving all or any portion of the type of consideration payable to the Other
shareholders of the Target Company(s) in connection with a Transaction, any
shareholder directly or indirectly retains an ownership interest in the Target
Company(s) or directly or indirectly acquires an ownership interest in the
corporation or other entity surviving or resulting from the Transaction, the
Transaction Value shall be calculated by assuming that such shareholder had sold its
entire ownership interest in the Target Company(s) and received in exchange therefore
an amount equal to that received by the Target Company(s) or the other shareholders
of the Target Company(s), as the case may be, in the Transaction.


For purposes of calculating the Transaction Fee, the fair market value of securities
for which there is an established trading market will be the closing sale price of
the securities on the trading day preceding the date of the closing of the
Transaction. The fair market value of any assets, securities, property or rights
(other than as provided above) will be mutually agreed by National and the Company.
If the parties cannot agree upon the fair market value of such assets, securities,
property or rights, they will choose a qualified appraiser of national standing to
conclusively determine such fair market value. The Company and National shall share
equally in the cost of such appraisal, Upon reasonable request, the Company will make
available to National any materially relevant information available to it for
purposes of calculating the amount of any component of the
Transaction Value.



The Transaction Fee will become payable by the Company upon consummation of (a) the
Acquisition, directly or indirectly, by another person or entity, in a single
transaction or series of related transactions, of (i) all or a substantial portion of
the assets or business of the Acquisition or (ii) securities representing debt and/or
equity of the Company or the Acquisition. The Transaction Fee(s) will be included in
the schedule of disbursements for the Closing and will be wired to the National on
the day of the Closing.



If this amendment letter accurately sets forth the understanding between us, please
sign the enclosed copy of this letter below and return it to National and this
letter will become a mutually binding obligation when signed by both parties. All
other terms and conditions of the engagement letter dated
August 4, 2009 remain the
same and in full force and effect.




New York ♦  Boca Raton ♦ Chicago ♦ Dallas ♦ Rochester




 









 








			
	 	 	 
	October 19, 2009
	 	Page 4






	 	 	 	 	 
	 	Very truly yours,

 	 
	 	By:  	/s/ Kenneth K. Conte
 	 
	 	Kenneth K. Conte 		 
	 	Managing Director and Head of

Mergers & Acquisitions Division 	 	 
	 
	 	 	 
	 	By:  	/s/ Jonathan C. Rich
 	 
	 	Jonathan C. Rich 	 	 
	 	Executive Vice President  and

Head of Investment Banking 	 	 
	 



Confirmed and Agreed to this

19th day of October, 2009;




	 	 	 	 	 
	NYTEX ENERGY HOLDINGS, INC	 	 
	 
	 	 	 	 
	By:

	 	/s/ Michael Galvis
 

	 	 
	Michael Galvis

Chief Executive Officer	 	 







	cc)	 	Bill Brehmer, NYTEX Energy Holdings, Inc

Michael Bezdek, National Securities Corporation 

Malcolm Plett, National Securities Corporation

Trey Marinello, National Securities Corporation





New York ♦ Boca Raton ♦ Chicago ♦ Dallas ♦ Rochester