exv10w9






Exhibit 10.9




AMENDED AND RESTATED

CERTIFICATE OF DESIGNATION

in respect of

SENIOR SERIES A REDEEMABLE PREFERRED STOCK

of

NYTEX FDF ACQUISITION, INC.




Pursuant to Section 151 of the Delaware General Corporation Law



     The undersigned, being President of NYTEX FDF Acquisition, Inc. (the “Corporation”), a
corporation organized and existing under the Delaware General Corporation Law, hereby certifies
that the resolutions set forth below were duly adopted by the Board of Directors of the Corporation
(the “Board”).



     WHEREAS, on November 19, 2010 the Board authorized and approved by resolution the designation
of 20,000 shares of the Corporation’s authorized shares of preferred stock, par value $0.001 per
share, as Senior Series A Redeemable Preferred Stock (“Senior Series A Redeemable Preferred
Stock”); and



     WHEREAS, the Board believes it is in best interest of the Corporation to increase the shares
of the Corporation Senior Series A Redeemable Preferred Stock from 20,000 to 20,750.



     BE IT RESOLVED, that the designation of Senior Series A Redeemable Preferred Stock is hereby
increased from 20,000 to 20,750 shares of Corporation’s authorized shares of Senior Series A
Redeemable Preferred Stock; and



     RESOLVED, that notwithstanding anything set forth in the Corporation’s Certificate of
Incorporation to the contrary, the number, powers, designations, preferences and relative,
participating, optional and other special rights, and the qualifications, limitations and
restrictions of the Senior Series A Redeemable Preferred Stock are to be fixed as follows:



ARTICLE 1

DIVIDENDS



     1.01. The Senior Series A Holders shall receive, in preference to the holders of the
Corporation’s Equity Securities (other than the Senior Series A Redeemable Preferred)
(collectively, “Junior Stock”), dividends at the Series A Dividend Rate on the Senior
Series A Original Stated Amount. Such dividends shall be declared by the Board and payable in cash
(out of funds legally available therefor) on each Senior Series A Dividend Date. Such dividends
shall accrue from the date of issuance of the Senior Series A Redeemable Preferred Stock and shall
accrue day to day, whether or not declared. Such dividends are cumulative so that if for any
dividend period the dividends on the outstanding Senior Series A Redeemable Preferred Stock are not
paid and/or declared and set apart, any such deficiency shall be fully paid or declared and set
apart for payment, before any other distribution (by dividend or otherwise), is paid on, declared
or set apart for any Junior Stock. Any dividends paid by the Corporation to a Senior Series A
Holder shall first be applied in payment of accumulated dividends which are most in arrears on the
shares owned by such Senior Series A Holder.



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ARTICLE 2

PRIORITIES




     2.01. Dividends and Redemption. So long as any share of Senior Series A Redeemable Preferred
Stock shall be outstanding, no dividend, whether in cash or property, shall be paid or declared
(other than dividends on shares of Common Stock payable in shares of Common Stock to facilitate
stock splits), nor shall any other distribution be made, on any Junior Stock, nor shall any shares
of Junior Stock be purchased, redeemed, or otherwise acquired for value by the Corporation, any
Subsidiary, NYTEX Energy Holdings, Inc. or any entity that Controls NYTEX Energy Holdings, Inc.
(other than any Senior Series A Holder) until all accrued dividends on the shares of Senior Series
A Redeemable Preferred Stock shall have been paid in full.



     2.02. Liquidation Preferences.



          a. Upon a Liquidation, after payment or provision for payment of the debts and other
liabilities of the Corporation, the Senior Series A Holders shall be entitled to receive, out of
the remaining assets of the Corporation available for distribution to its stockholders, with
respect to each share of Senior Series A Redeemable Preferred Stock, an amount in cash equal to all
accrued and unpaid dividends thereon from the last Senior Series A Dividend Date (or, if there has
not been a Senior Series A Dividend Date, from the date of issuance of such share of Senior Series
A Redeemable Preferred Stock) to the date fixed for Liquidation plus an amount in cash equal to the
Senior Series A Original Stated Amount (whether or not there are profits, surplus, or other funds
of the Corporation legally available for the payment of dividends), before any distribution shall
be made to the holders of any Junior Stock. If upon any Liquidation the assets of the Corporation
available for distribution to its stockholders shall be insufficient to pay the Senior Series A
Holders, all such accrued and unpaid dividends and the full Senior Series A Original Stated Amount
to which such holder shall be entitled, the Senior Series A Holders shall share pro
rata in any distribution of assets in accordance with their respective Series A Original
Stated Amount.




          b. Upon a Liquidation, after payment in full of all (i) accrued and unpaid dividends to the
Senior Series A Holders and (ii) Senior Series A Original Stated Amount to which the Senior Series
A Holders shall be entitled, the holders of Junior Stock shall be entitled to receive, the
remaining assets of the Corporation available for distribution to its stockholders in accordance
with the Certificate of Incorporation (including any amendments thereto) in effect at the time of
such Liquidation.




          c. In the event of a Liquidation involving the sale of shares by stockholders of the
Corporation or merger, consolidation or similar stock transaction, the “remaining assets of the
Corporation available for distribution” (as used in Sections 2.02(a) and (b) above) shall be deemed
to be the aggregate consideration to be paid to all stockholders participating in such Liquidation.
In connection with such a Liquidation, the Corporation shall concurrently with the consummation of
such Liquidation, cause the redemption of all outstanding shares of Senior Series A Redeemable
Preferred Stock for an amount in cash equal to the applicable amount payable with respect to such
shares of Senior Series A Redeemable Preferred Stock under this Section 2.02 (subject to the
priorities and limitations set forth herein).







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          d. If any or all of the proceeds payable to the stockholders of the Corporation in connection
with a Liquidation are in a form other than cash or marketable securities, the fair market value of
such consideration shall be determined by a nationally recognized independent accounting firm
mutually agreed upon by the Corporation and the Senior Series A Holders. The cost of the valuation
shall be borne by the Corporation.




ARTICLE 3

VOLUNTARY REDEMPTION



     3.01. Voluntary Redemption. Any and all outstanding shares of the Senior Series A Redeemable
Preferred Stock shall be subject to voluntary redemption (“Voluntary Redemption”) by the
Corporation (subject to the restrictions imposed herein and by Delaware law) after the third
(3rd) anniversary of the issuance of the Senior Series A Redeemable Preferred Stock
(such date the Corporation exercises its redemption right being referred to henceforth as the
“Voluntary Redemption Date”), at the purchase price per share applicable for such
Redemption Date as follows:



	 	 	 
	Redemption Date	 	Purchase Price Per Share
	36 (but less than 48) months after
the date of issuance:

	 	104% of the Senior Series A Original Stated Amount
	 
	 	 
	48 months after the date of issuance
to the Maturity Date:

	 	103% of the Senior Series A Original Stated Amount






     3.02. The Voluntary Redemption shall be accomplished using the procedures set forth below:



          a. Notice Procedure. The Corporation shall give notice to the holder of the shares of Senior
Series A Redeemable Preferred Stock to be redeemed (the “Voluntary Redemption Shares”) by
certified mail, return receipt requested, at least thirty (30) days in advance of the Voluntary
Redemption Date. The Voluntary Redemption Shares shall be redeemed upon payment by the Corporation
to the holder of the applicable purchase price per share set forth in Section 3.01, together with
the amount of any dividends declared and unpaid thereon, as of the Voluntary Redemption Date. The
Corporation shall be required to redeem pro rata, based on the number of shares of Senior Series A
Redeemable Preferred Stock held by the holder in relation to the number of shares of Senior Series
A Redeemable Preferred Stock issued and outstanding as of the record date for Voluntary Redemption,
at any time it elects to redeem the Senior Series A Redeemable Preferred Stock in part. Any
Voluntary Redemption hereunder shall be subject to restrictions imposed by Delaware law regarding
the circumstances under which such Voluntary Redemption may be effected.




          b. Payment Procedures. To facilitate the voluntary redemption of any shares of Senior Series
A Redeemable Preferred Stock, as provided in Sections 3.01 and 3.02, the Board shall be authorized
to cause the transfer books of the Corporation to be closed not more than sixty (60) days prior to
the Voluntary Redemption Date, as applicable. Any notice mailed by the






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Corporation shall contain the information required by Delaware law and shall be mailed to the
holder at his, her or its address, certified mail, return receipt requested, as the same shall
appear on the books of the Corporation. From and after the applicable Voluntary 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 Voluntary
Redemption Shares redeemed, except the right to receive the applicable purchase price and any
declared and unpaid dividends, shall cease and terminate.




          c. Delivery of Certificates. The holder shall be entitled to receive the applicable purchase
price per share as set forth in Section 3.01 plus any unpaid dividends 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 certificates for the number of shares to be redeemed, duly endorsed in blank or
accompanied by proper instruments of assignment and transfer duly endorsed in blank. Senior Series
A Redeemable Preferred Stock redeemed pursuant to the provisions of this Section may, in the sole
discretion of the Board, be held in the treasury of the Corporation or retired and canceled and
given the status of authorized and unissued Senior Series A Redeemable Preferred Stock.




          d. No Sinking Fund. No sinking fund will be created for the redemption or purchase of the
shares of Senior Series A Redeemable Preferred Stock.




ARTICLE 4

MANDATORY REDEMPTION



     4.01. Mandatory Redemption. Any and all outstanding shares of the Senior Series A Redeemable
Preferred Stock shall be redeemed (“Mandatory Redemption”) by the Corporation (subject to
the restrictions imposed herein and by Delaware law) immediately upon the earliest to occur of (a)
the date on which a Change of Control occurs, (b) a Triggering Event and (c) the Maturity Date
(such date, the “Mandatory Redemption Date”), at a purchase price per share equal to the
Senior Series A Original Stated Amount, plus any accrued and unpaid dividends thereon as of the
Mandatory Redemption Date.



     4.02. Subject to the Corporation having funds legally available for such purpose, the
Corporation shall redeem all shares of the Senior Series A Redeemable Preferred Stock then
outstanding on the Mandatory Redemption Date before any purchase, redemption or other acquisition
shall be made of any Junior Stock. If the funds of the Corporation legally available for
redemption of shares of Senior Series A Redeemable Preferred Stock shall be insufficient to permit
the payment of the per share purchase price in Section 4.01, then the Corporation shall redeem
shares of Senior Series A Redeemable Preferred Stock out of the funds legally available therefor
ratably based upon the number of shares of Senior Series A Redeemable Preferred Stock held by each
holder thereof. At any time and from time to time thereafter when additional funds become legally
available for the redemption of capital stock of the Corporation, such funds shall be used promptly
to redeem the balance of the shares of Senior Series A Redeemable Preferred Stock requested to be
redeemed pro rata, in accordance with the number of shares of Senior Series A Redeemable Preferred
Stock held by each holder thereof.



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     4.03. At any time on or after a Mandatory Redemption Date, each holder of record of shares of
Senior Series A Redeemable Preferred Stock to be redeemed on such date shall be entitled to receive
the purchase price per share as determined in accordance with Section 4.01 upon actual delivery to
the Corporation or its agents of the certificate or certificates representing the shares to be
redeemed duly endorsed in blank or accompanied by proper instruments of assignment and transfer
duly endorsed in blank. Senior Series A Redeemable Preferred Stock redeemed pursuant to the
provisions of this Section may, in the sole discretion of the Board, be held in the treasury of the
Corporation or retired and canceled and given the status of authorized and unissued Senior Series A
Redeemable Preferred Stock. On a Mandatory Redemption Date, all rights in respect of such shares
of Senior Series A Redeemable Preferred Stock to be redeemed, except the right to receive the
purchase price per share, shall cease and terminate (unless default shall be made by the
Corporation in the payment of the purchase price per share, in which event such rights shall be
exercisable until such default is cured), and such shares shall no longer be deemed to be
outstanding, whether or not the certificate or certificates representing such shares have been
received by the Corporation.



ARTICLE 5

VOTING RIGHTS



     5.01. Voting Rights. Except as set forth herein, that certain Preferred Stock and Warrant
Purchase Agreement, dated as of November 19, 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 NYTEX Energy Holdings, Inc., the Corporation and the Senior Series A
Holders, or as otherwise required by applicable law, each outstanding share of Senior Series A
Redeemable Preferred Stock shall not be entitled to vote on any matter on which the stockholders of
the Corporation shall be entitled to vote, and shares of Senior Series A Redeemable Preferred Stock
shall not be included in determining the number of shares voting or entitled to vote on any such
matters; provided, however, that the Senior Series A Holders shall have the right
to vote as a separate class on any amendment of this Section 5 and on any amendment, repeal or
modification of any provision of this Certificate of Designations or the Certificate of
Incorporation that adversely affects the powers, preferences or special rights of the Senior Series
A Holders. Any action to be taken by a vote of the Senior Series A Redeemable Preferred Stock
shall be authorized by the affirmative vote of the holders of a majority of the shares of Senior
Series A Redeemable Preferred Stock. For so long as any shares of Senior Series A Redeemable
Preferred Stock are outstanding, the Senior Series A Holders, voting as a single class, shall be
entitled to elect two (2) members to the Board at any annual or special stockholders meeting, and
whenever the stockholders of the Corporation act by written consent, in each case with respect to
election of directors, and such directors shall also be appointed to any committees of the Board.
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 holders of a majority of
the outstanding shares of Senior Series A Preferred Stock, 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 such Senior Series A Holders control of a majority of the
Board, and to designate such additional directors to the Board.



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ARTICLE 6

PROTECTIVE PROVISIONS




     6.01. Protective Provisions. Without the affirmative vote of the holders of at least 66.66%
of the then outstanding Senior Series A Redeemable Preferred Stock, voting together as a class, the
Corporation shall not take any action to (a) effect a reclassification or recapitalization of the
outstanding capital stock of the Corporation (whether by merger or otherwise), (b) except as
provided herein, redeem shares of Preferred Stock or Common Stock (excluding shares of Common Stock
repurchased from employees, officers, directors, consultants or other persons performing services
for the Corporation pursuant to agreements under which the Corporation has the option to repurchase
such shares at the lower of the price paid to the Corporation for the issuance of such shares or
the fair market value of such shares upon the occurrence of certain events, such as the termination
of employment), (c) effect a Liquidation, (d) authorize or issue capital stock with rights or
privileges that are equal to or superior to the Senior Series A Redeemable Preferred Stock, (e)
amend or repeal any provision of, or add any provision to, the Corporation’s Certificate of
Incorporation or Bylaws to change the rights of the Senior Series A Redeemable Preferred or
increase or decrease the number of authorized shares of Senior Series A Redeemable Preferred, (f)
amend any provision of, or add any provision to, the Corporation’s Certificate of Incorporation or
Bylaws to increase the number of directors serving on the Board from five other than as provided
herein.



ARTICLE 7

MISCELLANEOUS



     7.01. Notices of Record Date. In the event of any taking by the Corporation of record of the
holders of any class of securities for the purpose of determining the holders thereof who are
entitled to receive any dividend or other distribution, any right to subscribe for, purchase or
otherwise acquire any shares of stock of any class or any other securities or property or to
receive any other right, the Corporation shall mail to each holder of Senior Series A Redeemable
Preferred Stock at least ten (10) days prior to such record date, a notice specifying the date on
which any such record is to be taken for the purpose of such dividend or distribution or right, and
the amount and character of such dividend or right.



     7.02. Waiver. Any right, powers or preferences of the holders of Senior Series A Redeemable
Preferred Stock set forth herein may be waived by the affirmative consent or vote of the holders of
at least 66.66% of the shares of Senior Series A Redeemable Preferred Stock then outstanding.



ARTICLE 8

CERTAIN DEFINITIONS



     8.01. Capitalized terms used herein but not otherwise defined shall have the meanings ascribed
to them in the Preferred Stock and Warrant Purchase Agreement.



     8.02. Certain Other Defined Terms.



          a. “Affiliate” means, with respect to any Person, any (a) director, officer, limited
or general partner, member or shareholder holding 5% or more of the outstanding capital






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shares or other Equity Securities of such Person, (b) spouse, parent, sibling or descendant of
such Person (or a spouse, parent, sibling or descendant of a Person specified in clause (a) above
relating to such Person) and (c) other Person that, directly or indirectly, through one or more
intermediaries, controls, or is controlled by, or is under common control with, such Person.




          b. “Control” means (including, with correlative meanings, “controlled by” and “under
common control with”), with respect to any Person, the possession, directly or indirectly, of the
power to direct or cause the direction of the management or policies of such Person, whether
through the ownership of voting securities, by contract or otherwise.




          c. “Equity Securities” means the outstanding capital stock of the Corporation,
including, without limitation, all securities convertible into or exchangeable for capital stock of
the Corporation, and all options, warrants, and other rights to purchase or otherwise acquire from
the Corporation capital stock of the Corporation, including any share appreciation or similar
rights, contractual or otherwise.




          d. “Liquidation” means, unless the holders of 66.66% of the then outstanding shares of
Senior Series A Redeemable Preferred Stock elect otherwise by written notice to the Corporation,
(i) any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, other
than any dissolution, liquidation or winding up in connection with any reincorporation of the
Corporation in another jurisdiction, or (ii) the consummation of any transaction which results in a
Change of Control.




          e. “Person” shall be construed as broadly as possible and shall include an individual
or natural person, a partnership (including a limited liability partnership), a corporation, an
association, a joint share company, a limited liability company, a trust, a joint venture, an
unincorporated organization and a governmental entity.




          f. “Senior Series A Dividend Date” means December 31, March 31, June 30 and September
30 of each year.




          g. “Series A Dividend Rate” means a rate per annum of fourteen percent (14%)
(calculated on the basis of a year of 360 days consisting of twelve (12) thirty (30)-day months);
provided, however, that upon the occurrence and during the continuance of an Event
of Default, the rate shall increase to the rate of sixteen percent (16%) per annum.




          h. “Senior Series A Holder” means a holder of shares of Series A Redeemable Preferred
Stock.




          i. “Senior Series A Original Stated Amount” means $1,000 per share (as adjusted for
any stock dividends, combinations, splits, recapitalizations and related transactions with respect
to such shares).




          j. “Subsidiary” means, with respect to any Person, any other partnership (including
limited liability partnership), corporation, limited liability company, association, joint stock
company, trust, joint venture or unincorporated organization, of which fifty percent (50%) or more
of the equity interests or other interests entitled to vote in the election of directors or






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comparable Persons performing similar functions are at the time owned or Controlled, directly
or indirectly through one or more Subsidiaries, by such Person.




          k. “Triggering Event” means the occurrence of a Default that remains uncured for
seventy-five (75) days; provided, that payment to the Senior Series A Holders of all
amounts owing to them as a result of a Default shall be considered a cure of a Default.




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     In testimony whereof, NYTEX FDF Acquisition, Inc. has caused this Certificate to be
signed by its President on November 22, 2010.



	 	 	 	 	 
	 	NYTEX FDF ACQUISITION INC.

 	 
	 
	 	By:  	 	 
	 	 	Michael K. Galvis 	 
	 	 	President and CEO