exv10w10






Exhibit 10.10




CERTIFICATE OF DESIGNATION

in respect of

SERIES B REDEEMABLE PREFERRED STOCK

Of

NYTEX ENERGY HOLDINGS, INC.




Pursuant to Section 151 of the Delaware General Corporation Law



     The undersigned duly authorized officer of NYTEX Energy Holdings, Inc., a corporation
organized and existing under the General Corporation Law of the State of Delaware (the
“Corporation”), in accordance with the provisions of Section 151 thereof, DOES HEREBY
CERTIFY that the following resolution was duly adopted by the Corporation’s Board of Directors (the
“Board of Directors”), pursuant to Section 141(f) of the General Corporation Law of the
State of Delaware on November 19, 2010:



     Resolved, that, pursuant to Section 151 of the Delaware General Corporation Law, the
Corporation hereby establishes a series of Preferred Stock, par value $.001 per share, of the
Corporation and fixes the number of shares of such series and the powers, designations, preferences
and relative rights of such series, and the qualifications, limitations or restrictions thereof as
follows:



     The second series of Preferred Stock, par value $.001 per share, of the Corporation shall be,
and hereby is, designated “Series B Preferred Stock” (the “Series B Preferred
Stock”), and the number of shares constituting such series shall be one. The relative rights
and preferences of the Series B Preferred Stock shall be as follows:



ARTICLE 1

VOTING RIGHTS


     1.01. Voting Rights. Except (a) as set forth herein, (b) as set forth in that certain
Preferred Stock and Warrant Purchase Agreement, dated as of November [15], 2010, as the same may be
amended, restated or otherwise modified from time to time (the “Preferred Stock and Warrant
Purchase Agreement”), by and among the Corporation and WayPoint Nytex, LLC (the
“Holder”), or (c) as otherwise required by applicable law, no share of Series B Preferred
Stock (a “Share”) shall be entitled to vote on any matter on which the stockholders of the
Corporation shall be entitled to vote, and no Share shall be included in determining the number of
shares voting or entitled to vote on any such matters; provided, however, that the
Holder shall have the right to vote as a separate class on any amendment of this Article 1 and on
any amendment, repeal or modification of any provision of this Certificate of Designations or the
Corporation’s Certificate of Incorporation that adversely affects the powers, preferences or
special rights of the Holder (including any change to the Board of Directors) and the Corporation
shall take no such action without the affirmative vote of the Holder. For so long as a Terminating
Event has not occurred, the Holder shall be entitled to elect two members to the Board at any
annual or special




			
	 	 	 
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stockholders meeting, and whenever the stockholders of the Corporation act by written consent,
in each case with respect to election of directors. Notwithstanding anything to the contrary
contained herein or the Certificate of Incorporation or the Corporation’s Bylaws, upon the
occurrence of a Triggering Event, the Holder of the Share may, at anytime thereafter, by written
notice to the Corporation, increase the number of directors constituting the Board up to that
number of directors that would give the Holder control of a majority of the Board, and to designate
such additional directors to the Board.




     1.02. Definitions. A“Terminating Event” occurs when and if the Holder holds shares of
the Corporation’s Common Stock issued upon exercise of the Purchaser Warrant and Control Warrant
that were issued to Holder pursuant to the Preferred Stock and Warrant Purchase Agreement that,
when combined with shares of the Corporation’s Common Stock issuable upon the future exercise of
such Purchaser Warrant or such Control Warrant held by the Holder, do not exceed 5% of the total
aggregate number of outstanding shares of the Corporation’s Common Stock, calculated on a
Fully-Diluted Basis. “Fully-Diluted Basis” means all of the outstanding shares of the
Corporation’s Common Stock, assuming the exercise of all outstanding warrants and the exercise or
conversion of all outstanding Derivative Securities. “Derivative Securities” means (i) all
shares of stock and other securities that are convertible into or exchangeable or exercisable for
shares of the Corporation’s Common Stock, and (ii) all options, warrants, and other rights to
acquire shares of the Corporation’s Common Stock or any class of stock or other security or
securities convertible into or exchangeable for shares of the Corporation’s Common Stock or any
class of stock of other security. “Triggering Event” means the occurrence of a Default (as
defined in the Preferred Stock and Warrant Purchase Agreement) that remains uncured for
seventy-five (75) days; provided, that payment to the holders of NYTEX FDF Acquisition,
Inc.’s Senior Series A Redeemable Preferred Stock of all amounts owing to such holders as a result
of a Default shall be considered a cure of a Default.



ARTICLE 2

REDEMPTION



     2.01. Voluntary Redemption. Any outstanding Share shall be subject to voluntary redemption by
the Corporation (subject to the restrictions imposed herein and by Delaware law) after the
occurrence of a Terminating Event (such date the Corporation exercises its redemption right being
referred to henceforth as the “Redemption Date”), at the redemption price per share of
$1.00.



     2.02. Procedures. The redemption shall be accomplished using the procedures set forth below:



          a. Notice Procedure. The Corporation shall give notice to the Holder by certified mail,
return receipt requested, at least 30 days in advance of the Redemption Date. The Share shall be
redeemed upon payment by the Corporation to the Holder of the redemption price per share of $1.00.
Any redemption hereunder shall be subject to restrictions imposed by Delaware law regarding the
circumstances under which such redemption may be effected.




			
	 	 	 
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          b. Payment Procedures. Any notice mailed by the Corporation shall contain the information
required by Delaware law and shall be mailed to the Holder at its address,
certified mail, return receipt requested, as the same shall appear on the books of the
Corporation. From and after the Redemption Date, and after all amounts necessary to effect such
redemption have been set aside for such purpose, all rights of the Holder thereof as a stockholder
of the Corporation with respect to the Share, except the right to receive the redemption price,
shall cease and terminate.




          c. Delivery of Certificates. The Holder shall be entitled to receive the redemption price
upon actual delivery to the Corporation or to such other entity as may be designated by the notice
referred to in subsection b of this Section of the certificate for the Share, duly endorsed in
blank or accompanied by proper instruments of assignment and transfer duly endorsed in blank. The
redeemed Share shall be retired and canceled and may not be reissued.




          d. No Sinking Fund. No sinking fund will be created for the redemption or purchase of the
Share.




     In testimony whereof, NYTEX Energy Holdings, Inc. has caused this Certificate to be
signed by a duly authorized officer of the Company on November 19, 2010.



	 	 	 	 	 
	 	NYTEX ENERGY HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Michael K. Galvis 	 
	 	 	President and CEO 	 
	 



			
	 	 	 
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