exv10w7







Exhibit 10.7 







EXECUTION COPY





CONTROL WARRANT



THIS
WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES OR BLUE SKY LAW, AND MAY NOT
BE SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT, OR AN
EXEMPTION FROM REGISTRATION, THEREUNDER.




NYTEX ENERGY HOLDINGS, INC.




			
	Warrant Certificate No: 2
	 	Original Issuance Date: November 23, 2010






Common Stock Purchase Warrant




     NYTEX Energy Holdings, Inc., a Delaware corporation (the “Company”), hereby certifies that,
for value received, WayPoint Nytex, LLC, a Delaware limited liability company, or its registered
assigns (the “Holder”), is entitled, subject to the terms of this Warrant (the “Warrant”), as set
forth below, to purchase from the Company, in whole or in part, an aggregate of Eighteen Million,
Four Hundred Ninety-One Thousand, One Hundred Ninety (18,491,190) fully paid and non-assessable
shares of the Common Stock of the Company, subject to certain adjustments pursuant to Section 4
hereof (the “Warrant Shares”), at an exercise price of $0.01 per share (the “Exercise Price”).



     1. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere in this Warrant, the
following terms have the following meanings:



     1.1 “Aggregate Exercise Price” means an amount equal to the product of (i) the
number of Warrant Shares in respect of which this Warrant is then being exercised pursuant to
Section 2 hereof and (ii) the Exercise Price in effect on the applicable Exercise Date.



     1.2 “Acquisition Sub” means NYTEX FDF Acquisition, Inc., a Delaware corporation
and wholly owned subsidiary of the Company.



     1.3 “Business Day” means any date that is not a Saturday, Sunday or a day on which
banking institutions in New York, New York are not required to be open.



     1.4 “Certificate of Designation” means the Certificate of Designation in respect
of Senior Series A Redeemable Preferred Stock of Acquisition Sub.



     1.5 “Common Stock” means the Company’s Common Stock, par value $0.001.



     1.6 “Derivative Securities” means (i) all shares of stock and other securities
that are convertible into or exchangeable or exercisable for shares of Common Stock, and (ii) all
options,
warrants, and other rights to acquire shares of Common Stock or any class of stock or other
security or securities convertible into or exchangeable for shares of Common Stock or any class of
stock of other security.



 









 





     1.7 “Exercise Date” means the earliest to occur of: (i) a Triggering Event (as
defined in the Certificate of Designations); (ii) the Mandatory Redemption Date (as defined in the
Certificate of Designations) if the Company is not able to redeem the Senior Series A Redeemable
Preferred Stock (as defined in the Certificate of Designation) in accordance with the Certificate
of Designations; and (iii) seventy-five (75) days after the date on which the third (3rd) Default
(as defined in the Purchase Agreement) has occurred within a consecutive twelve (12)-month period.



     1.8 “Person” means any individual, sole proprietorship, partnership, limited
liability company, corporation, joint venture, trust, incorporated organization or government or
department or agency thereof.



     1.9 “Purchase Agreement” means that certain Preferred Stock and Warrant Purchase
Agreement, dated as of November 23, 2010, by and among the Company, Acquisition Sub and WayPoint
Nytex, LLC, as amended, restated, supplemented or otherwise modified from time to time.



     1.10 “Purchaser Warrant” means the Common Stock Purchase Warrant of the Company
evidenced by Warrant Certificate No. 1.



     1.11 “Redeemable Preferred Warrants” means, collectively, this Warrant and the
Purchaser Warrant.



     1.12 “Securities Act” means the Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Securities and Exchange Commission
thereunder, all as the same are in effect at the relevant time of reference.



     2. EXERCISE OF WARRANT.



     2.1 Method of Exercise. On or after the Exercise Date, the purchase rights
evidenced by this Warrant shall be exercised by the Holder surrendering this Warrant, together with
the Aggregate Exercise Price and the completed exercise notice attached hereto as Annex I (the
"Exercise Notice”), duly executed by the Holder, to the Company at its principal office at 12222
Merit Drive, Suite 1850, Dallas, Texas 75251, or such other office or agency of the Company as the
Company may hereafter designate for such purposes by written notice to the Holder (the “Principal
Office”). The Holder shall pay the Aggregate Exercise Price by delivery to the Company of a
certified or official bank check payable to the order of the Company or by wire transfer of
immediately available funds to an account designated in writing by the Company, in the amount of
such Aggregate Exercise Price.



     2.2 Automatic Exercise. In the event that this Warrant has not been exercised
prior to the tenth (10th) anniversary of the date hereof (“Expiration Date”), this
Warrant shall be automatically exercised on the Expiration Date (or if such date is not a Business
Day, then on the
next succeeding Business Day) and the Holder shall pay the Aggregate Exercise Price in
accordance with Section 2.1 hereof.



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     3. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after the exercise
of this Warrant and payment of the Aggregate Exercise Price, and in any event within ten (10) days
thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to
the Holder a certificate or certificates for the number of fully paid and non-assessable shares or
other securities or property to which the Holder shall be entitled upon such exercise. The Company
agrees that the shares so purchased shall be deemed to be issued to the Holder as the record owner
of such shares as of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid.



     4. ADJUSTMENTS. The number of Warrant Shares shall be subject to adjustment from time to
time in accordance with this Section 4. Upon each adjustment of the number of Warrant Shares
pursuant to this Section 4, the registered Holder of this Warrant shall thereafter be entitled to
acquire upon exercise, at the Exercise Price, the adjusted number of Warrant Shares.



     4.1 Dividends Not Paid Out of Earnings or Earned Surplus. In the event the
Company shall declare and pay a dividend upon the Common Stock (other than a dividend payable in
shares of capital stock of the Company) payable otherwise than out of earnings or earned surplus,
determined in accordance with generally accepted accounting principles (herein referred to as
“Liquidating Dividends”), then, as soon as possible after the exercise of this Warrant, the Company
shall pay to the Person exercising this Warrant an amount equal to the aggregate value at the time
of such exercise of all Liquidating Dividends that it would have received if it had exercised this
Warrant and owned the underlying Warrant Shares immediately prior to the record date for payment of
such Liquidating Dividends, or, if no such record date is taken, the date of payment thereof
(including but not limited to the capital stock of the Company which would have been issued at the
time of such earlier exercise and all other securities which would have been issued with respect to
such Common Stock by reason of stock splits, stock dividends, mergers or reorganizations, or for
any other reason). For the purposes of this Section 4.1, a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that such earnings or
earned surplus are charged an amount equal to the fair value of such dividend as determined in good
faith by the Board of Directors of the Company.



     4.2 Subdivisions and Combinations. In case the Company shall at any time (i)
subdivide the outstanding Common Stock or (ii) issue a dividend on its outstanding Common Stock
payable in shares of capital stock of the Company, the number of Warrant Shares in effect
immediately prior to such subdivision or dividend shall be proportionately increased by the same
ratio as the subdivision or dividend. In case the Company shall at any time combine its
outstanding Common Stock, the number of Warrant Shares in effect immediately prior to such
combination shall be proportionately decreased by the same ratio as the combination. In the event
of any subdivision of the outstanding Common Stock, issuance of any dividend on the Common Stock or
combination of the outstanding Common Stock, the Exercise Price shall be correspondingly adjusted
to give the Holder of the Warrant, on exercise for the same Aggregate Exercise Price, the type and
aggregate number of securities to which the Holder would have



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owned had the Warrant been exercised prior to the event and had the Holder continued to hold
such Warrant Shares until after the event requiring adjustment. For purposes of this Section 4.2,
the “Aggregate Exercise Price” shall mean the aggregate Exercise Price payable in connection with
the exercise in full of this Warrant immediately prior to such event. The form of this Warrant need
not be changed because of any adjustment in the type and/or number of Warrant Shares subject to
this Warrant.




     4.3 Reorganization, Reclassification, Consolidation, Merger or Sale of Assets. If
any capital reorganization or reclassification of the capital stock of the Company, or
consolidation or merger of the Company with or into another corporation, or the sale of all or
substantially all of its assets to another corporation shall be effected in such a way that holders
of the Common Stock shall be entitled to receive stock, securities, cash or other property with
respect to or in exchange for the Common Stock, then, as a condition of such reorganization,
reclassification, consolidation, merger or sale, lawful and adequate provision shall be made
whereby the Holder shall have the right to acquire and receive, upon exercise of this Warrant, in
lieu of Warrant Shares, such shares of capital stock, securities, cash or other property issuable
or payable (as part of the reorganization, reclassification, consolidation, merger or sale) with
respect to or in exchange for such number of outstanding shares of the Common Stock as would have
been received upon exercise of this Warrant at the Exercise Price. The Company will not effect any
such consolidation, merger or sale, unless prior to the consummation thereof the successor
corporation (if other than the Company) resulting from such consolidation or merger or the
corporation purchasing such assets shall assume by written instrument mailed or delivered to the
Holder at the last address of the Holder appearing on the books of the Company, the obligation to
deliver to the Holder such shares of capital stock, securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to receive. If a purchase, tender or exchange
offer is made to and accepted by the holders of more than 50% of the outstanding shares of any
class of capital stock of the Company, the Company shall not effect any consolidation, merger or
sale with the Person having made such offer or with any Affiliate of such Person, unless prior to
the consummation of such consolidation, merger or sale the Holder shall have been given a
reasonable opportunity to then elect to receive upon the exercise of this Warrant either the stock,
securities or assets then issuable with respect to the Common Stock or the stock, securities or
assets, or the equivalent, issued to previous holders of the Common Stock in accordance with such
offer. For purposes hereof the term “Affiliate” with respect to any given Person shall mean any
Person controlling, controlled by or under common control with the given Person.



     4.4 Notices of Record Date, Etc. In the event that:




     (1) the Company shall declare any cash dividend upon its Common Stock,




     (2) the Company shall declare any dividend upon its Common Stock payable in stock
or make any special dividend or other distribution to the holders of its Common Stock,




     (3) the Company shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of capital stock of any class or other rights,



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     (4) there shall be any capital reorganization or reclassification of the capital
stock of the Company, including any subdivision or combination of its outstanding shares of
the Common Stock, or consolidation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation, or




     (5) there shall be a voluntary or involuntary dissolution, liquidation or winding
up of the Company;




then, in connection with such event, the Company shall give to the Holder:




	 	(a)	 	at least twenty (20) days’ prior written notice of the date on which the
books of the Company shall close or a record shall be taken for such dividend,
distribution or subscription rights or for determining rights to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up; and






	 	(b)	 	in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least twenty (20) days’ prior
written notice of the date when the same shall take place.






Such notice in accordance with the foregoing clause (a) shall also specify, in the case of
any such dividend, distribution or subscription rights, the date on which the holders of the
Common Stock shall be entitled thereto, and such notice in accordance with the foregoing
clause (b) shall also specify the date on which the holders of the Common Stock shall be
entitled to exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification consolidation, merger, sale, dissolution, liquidation
or winding up, as the case may be. Each such written notice shall be given by first class
mail, postage prepaid, addressed to the Holder at the address of the Holder as shown on the
books of the Company.



     4.5 Anti-Dilution. On the Exercise Date, the number of Warrant Shares shall
adjust so that they represent that number of shares necessary to make all of the Warrant Shares
issued or issuable pursuant to this warrant plus all other shares held by Holder at the time of
exercise (including any unexercised warrants) represent fifty-one percent (51%) of the fully
diluted capital stock of the Company (assuming the exercise of all outstanding Warrants, including
the Purchaser Warrant and any additional Warrants issued and outstanding on the Exercise Date, and
the exercise or conversion of any Derivative Securities).



     4.6 Officers’ Statement as to Adjustments. Whenever the number of Warrant Shares
shall be adjusted as provided in Section 4 hereof, the Company shall forthwith prepare and
thereafter maintain at the Company’s office a statement signed by the Chairman of the Board, the
President, any Vice President or Treasurer of the Company, showing in reasonable detail the facts
requiring such adjustment, the method by which such adjustment was calculated and the number of
Warrant Shares that will be effective after such adjustment. The Company shall also cause a notice
setting forth any such adjustments to be sent by mail, first class, postage prepaid, to the record
Holder at his or its address appearing on the stock register.



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     4.7 Holder Put Right. If the Holder is a Purchaser (as defined in the Purchase
Agreement), then the Holder shall be entitled to exercise the “put right” as set forth in Section
12 of the Purchase Agreement.



     5. NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation
or through reorganization, consolidation, merger, dissolution, sale of assets or any other
voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this
Warrant, but will at all times in good faith assist in the carrying out of all such terms and in
the taking of all such action as may be necessary or appropriate in order to protect the rights of
the Holder set forth herein. Without limiting the generality of the foregoing, the Company (a)
will not increase the par value of any shares of Common Stock receivable upon the exercise of this
Warrant above the amount payable therefor upon such exercise, and at all times will take all such
action as may be necessary or appropriate in order that the Company may validly and legally issue
fully paid and non-assessable shares of Common Stock upon the exercise of this Warrant, and (b)
will not amend, modify or supplement its Certificate of Incorporation in a manner that would alter
the voting powers of the Common Stock.



     6. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF WARRANTS. The Company shall at all
times reserve and keep available out of its authorized but unissued stock, solely for the issuance
and delivery upon the exercise of this Warrant, such number of its duly authorized shares of Common
Stock as from time to time shall be issuable upon the exercise of this Warrant.



     7. TRANSFER, ETC.



     7.1 Ownership of Warrant. The Company may deem and treat the person in whose name
this Warrant is registered as the holder and the owner hereof, notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company, for all purposes and shall not
be affected by any notice to the contrary, until presentation of this Warrant for registration or
transfer as provided in Section 8.2. The Company shall maintain, at the Principal Office, a
register for the Warrants, in which the Company shall record the name and address of the person in
whose name each Warrant has been issued, as well as the name and address of each transferee and
each prior owner of such Warrant.



     7.2 Exchange, Transfer and Replacement. This Warrant and all rights hereunder are
transferable, in whole or in part, only upon the register provided for in Section 8.1, by the
registered Holder hereof in person or by duly authorized attorney, and a new Warrant shall be made
and delivered by the Company, of the same tenor as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant with the Assignment Form attached hereto as Annex II
(the “Assignment Form”) duly completed, at said office or agency of the Company. Upon receipt by
the Company at its Principal Office of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it and upon surrender there of this Warrant, if
mutilated, the Company will make and deliver a new Warrant of like tenor in replacement of this
Warrant. This Warrant shall be promptly cancelled by the Company upon the surrender hereof in
connection with any exchange, transfer or replacement.



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The Company shall pay all expenses and charges (other than securities transfer taxes) payable
in connection with the preparation, execution and delivery of Warrants pursuant to this Section
8.2.




     7.3 Rights of Holder. Prior to the exercise of this Warrant, the Holder shall not
be entitled to any rights of a shareholder of the Company with respect to Warrant Shares for which
this Warrant shall be exercisable, including, without limitation, the right to vote, and shall not
be entitled to receive any notice of any proceedings of the Company, except as provided herein;
provided, however, that, except in the case of a distribution of Liquidating
Dividends in respect of which the Holder is entitled to receive a payment pursuant to Section 4.1
or any dividend or distribution of shares of capital stock of the Company that results in an
adjustment to the number of Warrant Shares pursuant to Section 4, the Holder shall be entitled to
receive a pro rata portion of any and all dividends and distributions declared or paid by the
Company with respect to the outstanding shares of Common Stock, in each case to the same extent as
though this Warrant had been exercised in full immediately prior to the record date for the payment
of such dividend or distribution (or, if there shall be no such record date, immediately prior to
the declaration thereof).



     7.4 Transfer Taxes. The Company shall not be required to pay any Federal or state
transfer tax or charge that may be payable in respect of any transfer involved in the transfer or
delivery of this Warrant or the issuance or conversion or delivery of certificates for Warrant
Shares in a name other than that of the registered Holder or to issue or deliver any certificates
for Warrant Shares upon the exercise of this Warrant until any and all such taxes and charges shall
have been paid by the Holder or until it has been established to the Company’s satisfaction that no
such tax or charge is due.



     8. MAILING OF NOTICES, ETC. All notices and other communications from the Company to the
Holder shall be mailed by first-class certified mail, postage prepaid, to the address furnished to
the Company in writing by the last Holder of this Warrant who shall have furnished an address to
the Company in writing.



     9. HEADINGS, ETC. The headings in this Warrant are for purposes of reference only, and
shall not limit or otherwise affect the meaning hereof.



     10. CHANGE, WAIVER, ETC. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.



     11. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CHOICE OF LAW EXCEPT AS SET FORTH IN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.



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     12. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. Holder hereby represents and warrants
to the Company as follows:



     12.1 The Warrant and the Warrant Shares (collectively, the “Securities”) will be
acquired for investment for Holder’s own account, not as a nominee or agent, and not with a view to
the sale or distribution of any part thereof.



     12.2 The Holder understands that, at the time of issuance, the Securities may not be
registered under the Securities Act of 1933, as amended (the “Act”), or applicable state or
foreign securities laws, on the ground that the issuance of such Securities is exempt pursuant to
Section 4(2) of the Act and state law exemptions relating to offers and sales not by means of a
public offering, and that the Company’s reliance on such exemptions is predicated on the Holder’s
representations set forth herein.



     12.3 The Holder acknowledges that an investment in the Company is highly speculative and
represents that it is able to fend for itself in the transactions contemplated by this Statement,
has such knowledge and experience in financial and business matters as to be capable of evaluating
the merits and risks of its investments, and has the ability to bear the economic risks (including
the risk of a total loss) of its investment.



     12.4 The Holder understands that no public market now exists, and it is uncertain whether
a public market will ever exist, for the Securities. The Holder acknowledges that the shares of
stock issuable upon exercise of the Warrant must be held indefinitely unless subsequently
registered under the Act or an exemption from such registration is available.



     12.5 The Holder is an “accredited investor” within the meaning of Regulation D as promulgated by the
Act.



[Signature Page Follows]






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     IN WITNESS WHEREOF, the Company has executed this Warrant by its officer thereunto duly
authorized.





	 	 	





	 	 	 	 	 
	 	NYTEX ENERGY HOLDINGS,
INC.

	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




[Signature Page to Control Warrant]





 









 








ANNEX I




[To be signed only upon exercise of Warrant]




EXERCISE NOTICE



NYTEX Energy Holdings, Inc.

12222 Merit Drive, Suite 1850

Dallas, TX 75251



Pursuant to the provisions of the Warrant to purchase shares of Common Stock, par value $0.001 per
share, issued by NYTEX Energy Holdings, Inc. and held by the undersigned, the original of which is
delivered herewith, the undersigned hereby elects to purchase _________ such shares, and (check the
applicable box):




	 	 	 

	o

	 	Tenders herewith payment of the Aggregate Exercise Price (as
defined in the Warrant) in full in the form of cash, certified
check or official bank check in the amount of $__________________
for _______________ such securities.
	 
	 	 
	o

	 	Confirms that payment of the Aggregate Exercise Price in full by
means of a wire transfer in the amount of $__________________ for
_______________ such securities has been made to the Company.
	 
	 	 
	o

	 	Purchases ______________________ (insert number) Warrant Shares
pursuant to Section 2.1(ii) of the attached Warrant. The Company
is hereby instructed to withhold ________________ (insert number)
of such Warrant Shares as payment therefor.






     The undersigned hereby represents and warrants that the undersigned is acquiring such shares
for its own account for investment purposes only, and not for resale or with a view to distribution
of such shares or any part thereof.



     The undersigned requests that the certificates for such shares be issued in the name of, and
be delivered to ______________________, whose address is ___________________.


Dated:_________, 20__




	 	 	 	 	 
	 	 	 
	 	
 	 
	 	(Signature must conform in all respects 	 
	 	to name of Holder as specified on the
face of the Warrant) 	 
	 
	 	 	 
	 	
 	 
	 	Address 	 
	 	 	 



 









 






	 	 	 	 	 



ANNEX II




[To be signed only upon transfer of Warrant]




ASSIGNMENT FORM





     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________________ the right represented by the within Warrant to purchase
__________________ shares of Common Stock of NYTEX Energy Holdings, Inc. to which the within
Warrant relates, and appoints ____________________ attorney to transfer said right on the books of
NYTEX Energy Holdings, Inc., with full power of substitution in the premises.


Dated:_________, 20__




	 	 	 	 	 
	 	 	 
	 	 	 
	 	(Signature must conform in all respects to name of Holder as
specified on the face of the
Warrant) 	 
	 
	 	 	 
	 	
 	 
	 	Address 	 
	 	 	 
	 




 











 





EXECUTION COPY




PURCHASER WARRANT




          THIS WARRANT AND THE SECURITIES ISSUABLE UPON ITS EXERCISE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES OR BLUE SKY LAW, AND MAY NOT BE SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT, OR AN EXEMPTION FROM REGISTRATION,
THEREUNDER.




NYTEX ENERGY HOLDINGS, INC.




	 	 	 

	Warrant Certificate No: 1     Original Issuance Date: November 23, 2010








Common Stock Purchase Warrant




     NYTEX Energy Holdings, Inc., a Delaware corporation (the “Company”), hereby certifies that,
for value received, WayPoint Nytex, LLC, a Delaware limited liability company, or its registered
assigns (the “Holder”), is entitled, subject to the terms of this Warrant (the “Warrant”), as set
forth below, to purchase from the Company, in whole or in part, an aggregate of Nineteen Million,
Eight Hundred Nine Thousand, Two Hundred Forty-Five (19,809,245) fully paid and non-assessable
shares of the Common Stock, subject to certain adjustments pursuant to Section 4 hereof (the
“Warrant Shares”), at an exercise price of $0.01 per share (the “Exercise Price”).



     1. CERTAIN DEFINED TERMS. In addition to the terms defined elsewhere in this Warrant, the
following terms have the following meanings:



     1.1 “Aggregate Exercise Price” means an amount equal to the product of (i) the number
of Warrant Shares in respect of which this Warrant is then being exercised pursuant to Section
2 hereof and (ii) the Exercise Price.



     1.2 “Business Day” means any date that is not a Saturday, Sunday or a day on which
banking institutions in New York, New York are not required to be open.



     1.3 “Common Stock” means the Company’s Common Stock, par value $0.001 per share.



     1.4 “Derivative Securities” means (i) all shares of stock and other securities that
are convertible into or exchangeable or exercisable for shares of Common Stock, and (ii) all
options, warrants, and other rights to acquire shares of Common Stock or any class of stock or
other security or securities convertible into or exchangeable for shares of Common Stock or any
class of stock of other security



     1.5 “Exercise Date” means, with respect to any exercise of this Warrant, the date (or
if such date is not a Business Day, then on the next succeeding Business Day) on which all
conditions to such exercise as set forth in Section 2 hereof have been satisfied,
including, without



 









 




limitation, the receipt by the Company of the Exercise Notice, the Warrant and the Aggregate
Exercise Price.




     1.6 “Fair Market Value” means, with respect to any Exercise Date: (i) the volume
weighted average of the closing sales prices of the Common Stock on such Exercise Date on all
domestic securities exchanges on which the Common Stock may at the time be listed; (ii) if there
have been no sales of the Common Stock on any such exchange on such Exercise Date, the average of
the highest bid and lowest ask prices for the Common Stock on all such exchanges at the end of such
Exercise Date; (iii) if on such Exercise Date the Common Stock is not listed on a domestic
securities exchange, the closing sales price of the Common Stock as quoted on Nasdaq, the OTC
Bulletin Board or similar quotation system or association for such Exercise Date; (iv) if there
have been no sales of the Common Stock on Nasdaq, the OTC Bulletin Board or similar quotation
system or association on such Exercise Date, the average of the highest bid and lowest ask prices
for the Common Stock quoted on Nasdaq, the OTC Bulletin Board or similar quotation system or
association at the end of such Exercise Date; in each case, averaged over twenty (20) consecutive
Business Days ending on the Business Day immediately prior to such Exercise Date; provided, that if
the Common Stock is listed on any domestic securities exchange, the term “Business Day” as used in
this sentence means Business Days on which such exchange is open for trading; or (v) if the Common
Stock is not listed on any domestic securities exchange or quoted on Nasdaq, the OTC Bulletin Board
or similar quotation system or association, the fair market value per share as determined by a
nationally recognized independent accounting firm mutually agreed upon by the Company and the
Holder. The cost of the valuation shall be borne by the Company.



     1.7 “Person” means any individual, sole proprietorship, partnership, limited liability
company, corporation, joint venture, trust, incorporated organization or government or department
or agency thereof.



     1.8 “Purchase Agreement” means that certain Preferred Stock and Warrant Purchase
Agreement, dated as of November 23, 2010, by and among the Company, NYTEX FDF Acquisition, Inc. and
WayPoint Nytex, LLC, as amended, restated, supplemented or otherwise modified from time to time.



     1.9 “Securities Act” means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Securities and Exchange Commission
thereunder, all as the same are in effect at the relevant time of reference.



     2. EXERCISE OF WARRANT.



     2.1 Method of Exercise. The purchase rights evidenced by this Warrant shall be
exercised by the Holder surrendering this Warrant, together with the Aggregate Exercise Price and
the completed exercise notice attached hereto as Annex I (the “Exercise Notice”), duly executed by
the Holder, to the Company at its principal office at 12222 Merit Drive, Suite 1850, Dallas, Texas
75251, or such other office or agency of the Company as the Company may hereafter designate for
such purposes by written notice to the Holder (the “Principal Office”). The Holder shall pay the
Aggregate Exercise Price by any one or combination of the following methods:



2









 





          (i) by delivery to the Company of a certified or official bank check payable to the order of
the Company or by wire transfer of immediately available funds to an account designated in writing
by the Company, in the amount of such Aggregate Exercise Price; or




          (ii) by instructing the Company to withhold a number of Warrant Shares then issuable upon
exercise of this Warrant with an aggregate Fair Market Value as of the Exercise Date equal to such
Aggregate Exercise Price, computed using the following formula:




	 	 	 	 	 

	Y =
	 	EP
x X	 	, where
	 	FMV	 






          “Y” is the number of Warrant Shares to be withheld;




          “X” is the number of Warrant Shares for which the Holder has elected to exercise
this Warrant pursuant to Section 2 hereof;




          “FMV” is the Fair Market Value of one Warrant Share as of the applicable Exercise
Date; and




          “EP” is the Exercise Price in effect on the applicable Exercise Date; or



Notwithstanding the foregoing, if any withholding of Warrant Shares or surrender of other equity
securities pursuant to clause (ii) above would result in the withholding or surrender of a
non-whole number of shares or units, then the number of shares or units withheld by or surrendered
to the Company will be rounded up to the nearest whole share or unit and the Company shall make a
cash payment to the Holder (by delivery of a certified or official bank check or by wire transfer
of immediately available funds) based on the incremental fraction of a share or unit being so
withheld by or surrendered to the Company in an amount equal to the product of (x) such incremental
fraction of a share or unit being so withheld or surrendered multiplied by (y) in the case of
Common Stock, the Fair Market Value per Warrant Share on the applicable Exercise Date.




     2.2 Automatic Exercise. In the event that this Warrant has not been exercised prior
to the tenth (10th) anniversary of the date hereof (“Expiration Date”), this Warrant
shall be automatically exercised on the Expiration Date (or if such date is not a Business Day,
then on the next succeeding Business Day) and the Holder shall pay the Aggregate Exercise Price in
accordance with Section 2.1 hereof.



     3. DELIVERY OF STOCK CERTIFICATES ON EXERCISE. As soon as practicable after the exercise of
this Warrant and payment of the Aggregate Exercise Price, and in any event within ten (10) days
thereafter, the Company, at its expense, will cause to be issued in the name of and delivered to
the Holder a certificate or certificates for the number of fully paid and non-assessable shares or
other securities or property to which the Holder shall be entitled upon such exercise. The Company
agrees that the shares so purchased shall be deemed to be issued to the Holder as the record owner
of such shares as of the close of business on the date on which this Warrant shall have been
surrendered and payment made for such shares as aforesaid.



     4. ADJUSTMENTS. The number of Warrant Shares shall be subject to adjustment from time to time
in accordance with this Section 4. Upon each adjustment of the number of Warrant Shares pursuant
to this Section 4, the registered Holder of this Warrant shall thereafter



3









 




be entitled to acquire upon exercise, at the Exercise Price, the adjusted number of Warrant
Shares.




     4.1 Dividends Not Paid Out of Earnings or Earned Surplus. In the event the Company
shall declare and pay a dividend upon the Common Stock (other than a dividend payable in shares of
capital stock of the Company) payable otherwise than out of earnings or earned surplus, determined
in accordance with generally accepted accounting principles (herein referred to as “Liquidating
Dividends”), then, as soon as possible after the exercise of this Warrant, the Company shall pay to
the Person exercising this Warrant an amount equal to the aggregate value at the time of such
exercise of all Liquidating Dividends that it would have received if it had exercised this Warrant
and owned the underlying Warrant Shares immediately prior to the record date for payment of such
Liquidating Dividends, or, if no such record date is taken, the date of payment thereof (including
but not limited to the capital stock of the Company which would have been issued at the time of
such earlier exercise and all other securities which would have been issued with respect to such
Common Stock by reason of stock splits, stock dividends, mergers or reorganizations, or for any
other reason). For the purposes of this Section 4.1, a dividend other than in cash shall be
considered payable out of earnings or earned surplus only to the extent that such earnings or
earned surplus are charged an amount equal to the fair value of such dividend as determined in good
faith by the Board of Directors of the Company.



     4.2 Subdivisions and Combinations. In case the Company shall at any time (i)
subdivide the outstanding Common Stock or (ii) issue a dividend on its outstanding Common Stock
payable in shares of capital stock of the Company, the number of Warrant Shares in effect
immediately prior to such subdivision or dividend shall be proportionately increased by the same
ratio as the subdivision or dividend. In case the Company shall at any time combine its
outstanding Common Stock, the number of Warrant Shares in effect immediately prior to such
combination shall be proportionately decreased by the same ratio as the combination. In the event
of any subdivision of the outstanding Common Stock, issuance of any dividend on the Common Stock or
combination of the outstanding Common Stock, the Exercise Price shall be correspondingly adjusted
to give the Holder of the Warrant, on exercise for the same Aggregate Exercise Price, the type and
aggregate number of securities to which the Holder would have owned had the Warrant been exercised
prior to the event and had the Holder continued to hold such Warrant Shares until after the event
requiring adjustment. For purposes of this Section 4.2, the “Aggregate Exercise Price” shall mean
the aggregate Exercise Price payable in connection with the exercise in full of this Warrant
immediately prior to such event. The form of this Warrant need not be changed because of any
adjustment in the type and/or number of Warrant Shares subject to this Warrant.



     4.3 Reorganization, Reclassification, Consolidation, Merger or Sale of Assets. If any
capital reorganization or reclassification of the capital stock of the Company, or consolidation or
merger of the Company with or into another corporation, or the sale of all or substantially all of
its assets to another corporation shall be effected in such a way that holders of the Common Stock
shall be entitled to receive stock, securities, cash or other property with respect to or in
exchange for the Common Stock, then, as a condition of such reorganization, reclassification,
consolidation, merger or sale, lawful and adequate provision shall be made whereby the Holder shall
have the right to acquire and receive, upon exercise of this Warrant, in lieu of Warrant Shares,
such shares of capital stock, securities, cash or other property issuable or payable (as part



4









 




of the reorganization, reclassification, consolidation, merger or sale) with respect to or in
exchange for such number of outstanding shares of the Common Stock as would have been received upon
exercise of this Warrant at the Exercise Price. The Company will not effect any such
consolidation, merger or sale, unless prior to the consummation thereof the successor corporation
(if other than the Company) resulting from such consolidation or merger or the corporation
purchasing such assets shall assume by written instrument mailed or delivered to the Holder at the
last address of the Holder appearing on the books of the Company, the obligation to deliver to the
Holder such shares of capital stock, securities or assets as, in accordance with the foregoing
provisions, the Holder may be entitled to receive. If a purchase, tender or exchange offer is made
to and accepted by the holders of more than 50% of the outstanding shares of any class of capital
stock of the Company, the Company shall not effect any consolidation, merger or sale with the
Person having made such offer or with any Affiliate of such Person, unless prior to the
consummation of such consolidation, merger or sale the Holder shall have been given a reasonable
opportunity to then elect to receive upon the exercise of this Warrant either the stock, securities
or assets then issuable with respect to the Common Stock or the stock, securities or assets, or the
equivalent, issued to previous holders of the Common Stock in accordance with such offer. For
purposes hereof the term “Affiliate” with respect to any given Person shall mean any Person
controlling, controlled by or under common control with the given Person.




     4.4 Notices of Record Date, Etc. In the event that:




     (1) the Company shall declare any cash dividend upon its Common Stock,




     (2) the Company shall declare any dividend upon its Common Stock payable in stock or
make any special dividend or other distribution to the holders of its Common Stock,




     (3) the Company shall offer for subscription pro rata to the holders of its Common
Stock any additional shares of capital stock of any class or other rights,




     (4) there shall be any capital reorganization or reclassification of the capital stock
of the Company, including any subdivision or combination of its outstanding shares of the
Common Stock, or consolidation or merger of the Company with, or sale of all or
substantially all of its assets to, another corporation, or




     (5) there shall be a voluntary or involuntary dissolution, liquidation or winding up of
the Company;



     then, in connection with such event, the Company shall give to the Holder:




	 	(a)	 	at least twenty (20) days’ prior written notice of the date on which the books
of the Company shall close or a record shall be taken for such dividend, distribution
or subscription rights or for determining rights to vote in respect of any such
reorganization, reclassification, consolidation, merger, sale, dissolution, liquidation
or winding up; and




5









 












	 	(b)	 	in the case of any such reorganization, reclassification, consolidation,
merger, sale, dissolution, liquidation or winding up, at least twenty (20) days’ prior
written notice of the date when the same shall take place.






Such notice in accordance with the foregoing clause (a) shall also specify, in the case of
any such dividend, distribution or subscription rights, the date on which the holders of the
Common Stock shall be entitled thereto, and such notice in accordance with the foregoing
clause (b) shall also specify the date on which the holders of the Common Stock shall be
entitled to exchange their Common Stock for securities or other property deliverable upon
such reorganization, reclassification consolidation, merger, sale, dissolution, liquidation
or winding up, as the case may be. Each such written notice shall be given by first class
mail, postage prepaid, addressed to the Holder at the address of the Holder as shown on the
books of the Company.



     4.5 Anti-Dilution. As of the date hereof, the Warrant Shares represent thirty-five
percent (35%) of the fully diluted capital stock of the Company (assuming the exercise of all
outstanding warrants, including any warrants issued on the date hereof and the exercise or
conversion of any Derivative Securities). If at any time after the date hereof, the Company issues
or sells any shares of Common Stock, Derivative Securities or any other capital stock of the
Company (a “Dilution Event”), the number of Warrant Shares shall automatically adjust so that the
Warrant Shares, including any Warrant Shares previously issued, continue to represent thirty-five
percent (35%) of the fully diluted capital stock of the Company (assuming the exercise of all
outstanding warrants and the exercise or conversion of any Derivative Securities).



     4.6 EBITDA Adjustment. On the Exercise Date, the number of Warrant Shares shall
automatically adjust in accordance with Annex III hereto so that the Warrant Shares, including any
Warrant Shares previously issued, represent the applicable percentage of the fully diluted capital
stock of the Company (assuming the exercise of all outstanding warrants and the exercise or
conversion of any Derivative Securities) determined by the EBITDA (as defined in the Purchase
Agreement) for the trailing twelve (12)-month period from the date of the end of the most recent
fiscal quarter ended prior to the Exercise Date.



     4.7 Officers’ Statement as to Adjustments. Whenever the number of Warrant Shares
shall be adjusted as provided in Section 4 hereof, the Company shall forthwith prepare and
thereafter maintain at the Company’s office a statement signed by the Chairman of the Board, the
President, any Vice President or Treasurer of the Company, showing in reasonable detail the facts
requiring such adjustment, the method by which such adjustment was calculated and the number of
Warrant Shares that will be effective after such adjustment. The Company shall also cause a notice
setting forth any such adjustments to be sent by mail, first class, postage prepaid, to the record
Holder at his or its address appearing on the stock register.



     4.8 Holder Put Right. If the Holder is a Purchaser (as defined in the Purchase
Agreement), then the Holder shall be entitled to exercise the “put right” as set forth in Section
12 of the Purchase Agreement.



     5. NO IMPAIRMENT. The Company will not, by amendment of its Certificate of Incorporation or
through reorganization, consolidation, merger, dissolution, sale of assets or any



6









 




other voluntary action, avoid or seek to avoid the observance or performance of any of the
terms of this Warrant, but will at all times in good faith assist in the carrying out of all such
terms and in the taking of all such action as may be necessary or appropriate in order to protect
the rights of the Holder set forth herein. Without limiting the generality of the foregoing, the
Company (a) will not increase the par value of any shares of Common Stock receivable upon the
exercise of this Warrant above the amount payable therefor upon such exercise, and at all times
will take all such action as may be necessary or appropriate in order that the Company may validly
and legally issue fully paid and non-assessable shares of Common Stock upon the exercise of this
Warrant, and (b) will not amend, modify or supplement its Certificate of Incorporation in a manner
that would alter the voting powers of the Common Stock.




     6. RESERVATION OF STOCK, ETC., ISSUABLE ON EXERCISE OF WARRANTS. The Company shall at all
times reserve and keep available out of its authorized but unissued stock, solely for the issuance
and delivery upon the exercise of this Warrant, such number of its duly authorized shares of Common
Stock as from time to time shall be issuable upon the exercise of this Warrant.



     7. TRANSFER, ETC.



     7.1 Ownership of Warrant. The Company may deem and treat the person in whose name
this Warrant is registered as the holder and the owner hereof, notwithstanding any notations of
ownership or writing hereon made by anyone other than the Company, for all purposes and shall not
be affected by any notice to the contrary, until presentation of this Warrant for registration or
transfer as provided in Section 8.2. The Company shall maintain, at the Principal Office, a
register for the Warrants, in which the Company shall record the name and address of the person in
whose name each Warrant has been issued, as well as the name and address of each transferee and
each prior owner of such Warrant.



     7.2 Exchange, Transfer and Replacement. This Warrant and all rights hereunder are
transferable, in whole or in part, only upon the register provided for in Section 8.1, by the
registered Holder hereof in person or by duly authorized attorney, and a new Warrant shall be made
and delivered by the Company, of the same tenor as this Warrant but registered in the name of the
transferee, upon surrender of this Warrant with the Assignment Form attached hereto as Annex II
(the “Assignment Form”) duly completed, at said office or agency of the Company. Upon receipt by
the Company at its Principal Office of evidence reasonably satisfactory to it of the loss, theft,
destruction or mutilation of this Warrant, and, in the case of loss, theft or destruction, of
indemnity or security reasonably satisfactory to it and upon surrender there of this Warrant, if
mutilated, the Company will make and deliver a new Warrant of like tenor in replacement of this
Warrant. This Warrant shall be promptly cancelled by the Company upon the surrender hereof in
connection with any exchange, transfer or replacement. The Company shall pay all expenses and
charges (other than securities transfer taxes) payable in connection with the preparation,
execution and delivery of Warrants pursuant to this Section 8.2.



     7.3 Rights of Holder. Prior to the exercise of this Warrant, the Holder shall not be
entitled to any rights of a shareholder of the Company with respect to Warrant Shares for which
this Warrant shall be exercisable, including, without limitation, the right to vote, and shall not
be entitled to receive any notice of any proceedings of the Company, except as provided herein;



7









 




provided, however, that, except in the case of a distribution of Liquidating
Dividends in respect of which the Holder is entitled to receive a payment pursuant to Section 4.1
or any dividend or distribution of shares of capital stock of the Company that results in an
adjustment to the number of Warrant Shares pursuant to Section 4, the Holder shall be entitled to
receive a pro rata portion of any and all dividends and distributions declared or paid by the
Company with respect to the outstanding shares of Common Stock, in each case to the same extent as
though this Warrant had been exercised in full immediately prior to the record date for the payment
of such dividend or distribution (or, if there shall be no such record date, immediately prior to
the declaration thereof).




     7.4 Transfer Taxes. The Company shall not be required to pay any Federal or state
transfer tax or charge that may be payable in respect of any transfer involved in the transfer or
delivery of this Warrant or the issuance or conversion or delivery of certificates for Warrant
Shares in a name other than that of the registered Holder or to issue or deliver any certificates
for Warrant Shares upon the exercise of this Warrant until any and all such taxes and charges shall
have been paid by the Holder or until it has been established to the Company’s satisfaction that no
such tax or charge is due.



     8. MAILING OF NOTICES, ETC. All notices and other communications from the Company to the
Holder shall be mailed by first-class certified mail, postage prepaid, to the address furnished to
the Company in writing by the last Holder of this Warrant who shall have furnished an address to
the Company in writing.



     9. HEADINGS, ETC. The headings in this Warrant are for purposes of reference only, and shall
not limit or otherwise affect the meaning hereof.



     10. CHANGE, WAIVER, ETC. Neither this Warrant nor any term hereof may be changed, waived,
discharged or terminated orally but only by an instrument in writing signed by the party against
which enforcement of the change, waiver, discharge or termination is sought.



     11. GOVERNING LAW. THIS WARRANT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS
OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF CHOICE OF LAW EXCEPT AS SET FORTH IN
SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.



     12. REPRESENTATIONS AND WARRANTIES OF THE HOLDER. Holder hereby represents and warrants to
the Company as follows:



     12.1 The Warrant and the Warrant Shares (collectively, the “Securities”) will be
acquired for investment for Holder’s own account, not as a nominee or agent, and not with a view to
the sale or distribution of any part thereof.



     12.2 The Holder understands that, at the time of issuance, the Securities may not be
registered under the Securities Act of 1933, as amended (the “Act”), or applicable state or
foreign securities laws, on the ground that the issuance of such Securities is exempt pursuant to
Section 4(2) of the Act and state law exemptions relating to offers and sales not by means of a



8









 




public offering, and that the Company’s reliance on such exemptions is predicated on the
Holder’s representations set forth herein.




     12.3 The Holder acknowledges that an investment in the Company is highly speculative and
represents that it is able to fend for itself in the transactions contemplated by this Statement,
has such knowledge and experience in financial and business matters as to be capable of evaluating
the merits and risks of its investments, and has the ability to bear the economic risks (including
the risk of a total loss) of its investment.



     12.4 The Holder understands that no public market now exists, and it is uncertain whether a
public market will ever exist, for the Securities. The Holder acknowledges that the shares of
stock issuable upon exercise of the Warrant must be held indefinitely unless subsequently
registered under the Act or an exemption from such registration is available.


     12.5 The Holder is an “accredited investor” within the meaning of Regulation D as promulgated by
the Act.




[Signature Page Follows]






9









 







IN WITNESS WHEREOF, the Company has executed this Warrant by its officer thereunto duly
authorized.




	 	 	 	 	 
	 	NYTEX ENERGY HOLDINGS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 


Dated:




[Signature Page to Purchaser Warrant]






 









 








ANNEX I




[To be signed only upon exercise of Warrant]




EXERCISE NOTICE



NYTEX Energy Holdings, Inc.

12222 Merit Drive, Suite 1850

Dallas, TX 75251



Pursuant to the provisions of the Warrant to purchase shares of Common Stock, par value $0.001 per
share, issued by NYTEX Energy Holdings, Inc. and held by the undersigned, the original of which is
delivered herewith, the undersigned hereby elects to purchase _________ such shares, and (check the
applicable box):




	 	 	 

	 ̈

	 	Tenders herewith payment of the Aggregate Exercise Price (as
defined in the Warrant) in full in the form of cash, certified
check or official bank check in the amount of $__________________
for _______________ such securities.
	 
	 	 
	 ̈

	 	Confirms that payment of the Aggregate Exercise Price in full by
means of a wire transfer in the amount of $__________________ for
_______________ such securities has been made to the Company.
	 
	 	 
	 ̈

	 	Purchases ______________________ (insert number) Warrant Shares
pursuant to Section 2.1(ii) of the attached Warrant. The Company
is hereby instructed to withhold ________________ (insert number)
of such Warrant Shares as payment therefor.






     The undersigned hereby represents and warrants that the undersigned is acquiring such shares
for its own account for investment purposes only, and not for resale or with a view to distribution
of such shares or any part thereof.



     The undersigned requests that the certificates for such shares be issued in the name of, and
be delivered to ______________________, whose address is ___________________.


Dated:_________, 20__




	 	 	 

	 

	 	 
	 

	 	(Signature must conform in all respects
to name of Holder as specified on the
face of the Warrant)
	 
	 	 
	 

	 	 
	 

	 	Address






 









 






ANNEX II




[To be signed only upon transfer of Warrant]




ASSIGNMENT FORM




     FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto
____________________________ the right represented by the within Warrant to purchase
__________________ shares of Common Stock of NYTEX Energy Holdings, Inc. to which the within
Warrant relates, and appoints ____________________ attorney to transfer said right on the books of
NYTEX Energy Holdings, Inc., with full power of substitution in the premises.


Dated:_________, 20__




	 	 	 

	 

	 	 
	 

	 	(Signature must conform in all
respects to name of Holder as
specified on the face of the
Warrant)
	 
	 	 
	 

	 	 
	 

	 	Address






 









 






ANNEX III




	 	 	 	 	 	 	 	 	 
	12-month Trailing EBITDA	 	 	 	 	 
	 	 	 	APPLICABLE	 
	LOW EBITDA	 	HIGH EBITDA	 	 	PERCENTAGE	 
	            $0
	 	 	27,500,000.0	 	 	 	35.0	%
	27,500,000.0
	 	 	30,000,000.0	 	 	 	34.2	%
	30,000,000.0
	 	 	32,500,000.0	 	 	 	33.3	%
	32,500,000.0
	 	 	35,000,000.0	 	 	 	32.5	%
	35,000,000.0
	 	 	37,500,000.0	 	 	 	31.7	%
	37,500,000.0
	 	 	40,000,000.0	 	 	 	30.8	%
	40,000,000.0
	 	 	42,500,000.0	 	 	 	30.0	%
	42,500,000.0
	 	 	45,000,000.0	 	 	 	29.2	%
	45,000,000.0
	 	 	47,500,000.0	 	 	 	28.3	%
	47,500,000.0
	 	 	50,000,000.0	 	 	 	27.5	%