exv4w11







Exhibit 4.11




					
	 	 	 	 	 
	 
	 	
	 	PAGE 1






     I, JEFFREY W. BULLOCK, SECRETARY OF STATE OF THE STATE OF DELAWARE, DO HEREBY CERTIFY
THE ATTACHED IS A TRUE AND CORRECT COPY OF THE CERTIFICATE OF DESIGNATION OF “NYTEX ENERGY
HOLDINGS, INC.”, FILED IN THIS OFFICE ON THE NINETEENTH DAY OF NOVEMBER, A.D. 2010, AT 2:13
O’CLOCK P.M.



     A FILED COPY OF THIS CERTIFICATE HAS BEEN FORWARDED TO THE NEW CASTLE COUNTY RECORDER
OF DEEDS.



	 	 	 	 	 	 

	2149669 8100


101107013

You may verify this certificate

online 
at corp. delaware.gov/authver.shtml

	 	
	 	 	/s/ Jeffrey W. Bullock
 

Jeffrey W. Bullock, Secretary of State


AUTHENTICATION: 8367877 

DATE: 11-19-10










 









 








State of Delaware

Secretary of State

Division of Corporations

Delivered 02:27 PM 11/19/2010

FILED 02:13 PM 11/19/2010

SRV 101107013 - 2149669 FILE




CERTIFICATE OF DESIGNATION

in respect of

SERIES A CONVERTIBLE PREFERRED STOCK

Of

NYTEX ENERGY HOLDINGS, INC.




Pursuant to Section 151 of the General Corporation Law of the State of Delaware



     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 September 21, 2010:



     Resolved, that, pursuant to Section 151 of the General Corporation Law of the
State of Delaware, 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 first series of Preferred Stock, par value $.001 per share, of the Corporation shall
be, and hereby is, designated “Series A Preferred Stock” (the “Series A Preferred
Stock”), and the number of shares constituting such series shall be 6,300,000. The
relative rights and preferences of the Series A Preferred Stock shall be as follows:



ARTICLE 1

RANK




     1.01 Rank.



          (a) Dividends and Other Distributions. With respect to the payment of
dividends and other distributions on the capital stock of the Corporation, other than the
distribution of the assets upon a liquidation, dissolution or winding-up of the affairs of
the Corporation, the Series A Preferred Stock shall rank: (i) senior to the common stock
of the Corporation, par value $.001 per share (the “Common Stock”), (ii) senior to
any new class or series of stock of the Corporation that by its terms ranks junior to the
Series A Preferred Stock, or that does not provide any terms for seniority, as to payment
of dividends and (iii) with the consent or approval of the holders of 66.66% of the
outstanding shares of the Series A Preferred Stock and subject to Article 7 hereto, (A)
junior to any new class of stock of the Corporation that by its terms ranks senior to the
Series A Preferred Stock with respect to dividends or (B) on a parity with any new class
or series of stock of the Corporation that by its terms ranks on a parity with the Series
A Preferred Stock as to payment of dividends.




			
	 	 	 
	Series A Preferred Stock 


	 	Page 1











 









 











          (b) Liquidation. With respect to the distribution of assets upon a liquidation,
dissolution or winding-up of the affairs of the Corporation, whether voluntary or involuntary,
the Series A Preferred Stock shall rank (i) senior to the Common Stock, (ii) senior to any new
class or series of stock of the Corporation that by its terms ranks junior to the Series A
Preferred Stock, or that does not provide any terms for seniority, as to distribution of assets
upon liquidation, dissolution or winding-up, (iii) with the consent of the holders of 66.66% of
the outstanding shares of the Series A Preferred Stock and subject to Article 7 hereto, (A)
junior to any new class of stock of the Corporation that by its terms ranks senior to the Series
A Preferred Stock as to distribution of assets upon liquidation, dissolution or winding-up of the
Corporation and (B) on a parity with any new class or series of stock of the Corporation that by
its terms ranks on a parity with the Series A Preferred Stock as to distribution of assets upon
liquidation, dissolution or winding-up of the Corporation. With respect to the distribution of
assets upon liquidation, dissolution or winding-up of the Corporation, whether voluntary or
involuntary, all equity securities of the Corporation to which the Series A Preferred Stock ranks
on a parity are collectively referred to herein as “Series A Parity Liquidation
Securities.”




ARTICLE 2

DIVIDENDS




     2.01 Dividends. The holders of the Series A Preferred Stock shall be entitled to receive, in
preference to the holders of the Common Stock or any class or series of stock ranking junior to
the Series A Preferred Stock, cumulative dividends out of funds legally available therefor at the
rate of nine percent (9%) per annum, of the purchase price per share ($1.00) of the Series A
Preferred Stock from and after the original issue date. Dividends shall be declared and be
payable in cash on each outstanding share of Series A Preferred Stock quarterly at the beginning
of each calendar quarter commencing January 1, 2011, but shall in any event accrue and be due and
payable in full (i) upon the conversion of the Series A Preferred Stock on the terms hereof, or
(ii) upon the redemption of Series A Preferred Stock as provided in Article 4 hereof. The
dividends are cumulative so that if for any dividend period the dividends on the outstanding
Series A 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, without interest, before any other distribution
(by dividend or otherwise), is paid on, declared or set apart for the Common Stock or any class
or series of stock ranking junior to the Series A Preferred Stock. Any dividends paid by the
Corporation to a holder shall first be applied in payment of accumulated dividends which are most
in arrears on the shares owned by such holder. The holders of the Series A Preferred Stock shall
not be entitled to dividends except as aforesaid and except as set forth in this Section, nor
shall they be entitled to any interest on any dividends which may be declared but not yet paid.



ARTICLE 3

LIQUIDATION RIGHTS




     3.01 Liquidation Preferences. In the event of any voluntary or involuntary liquidation,
dissolution, winding-up of affairs of the Corporation or other similar event (each, a
“Liquidation Event”) or in the event of a Deemed Liquidation Event (as defined in Section
3.04 hereof), the holders of shares of Series A Preferred Stock then outstanding shall be entitled
to be paid, out of



			
	 	 	 
	Series A Preferred Stock

	 	Page 2











 









 










the assets of the Corporation legally available for distribution to its stockholders, on a
pro rata basis, an amount equal to $1.50 per share (adjusted for any stock splits or
combinations of the Series A Preferred Stock, stock dividends paid in and on the Series A Preferred
Stock or recapitalizations or any other similar transactions that have the effect of increasing or
decreasing the number of shares represented by each outstanding share of Series A Preferred Stock),
plus an amount equal to all unpaid dividends as of such date on the Series A Preferred Stock, if
any (the “Liquidation Amount”). Following payment, first to the holders of the Series A
Preferred Stock then outstanding of the Liquidation Amount, the remaining assets (if any) of the
Corporation available for distribution to the stockholders of the Corporation shall be distributed,
subject to the rights of the holders of shares of any other series of preferred stock ranking
senior to the Common Stock as to distribution upon a Liquidation Event, among the holders of the
Common Stock and any other shares of capital stock of the Corporation ranking on a parity with the
Common Stock as to distributions upon a Liquidation Event.




     3.02 Pro Rata Distribution. If, upon distribution of the Corporation’s assets on a Liquidation
Event or Deemed Liquidation Event, the net assets of the Corporation available to be distributed
among the holders of shares of the Series A Preferred Stock are insufficient to permit payment in
full of the Liquidation Amount to the holders of the Series A Preferred Stock, then the entire
assets of the Corporation available for distribution shall be distributed among the holders of
shares of the Series A Preferred Stock ratably in proportion to the full amounts to which they
would otherwise be respectively entitled.



     3.03
Priority. All of the preferential amounts to be paid to the holders of the Series A
Preferred Stock as to distributions upon a Liquidation Event shall be made or set apart for payment
before any payment or setting apart for payment of any amount for, or the distribution of any
assets of the Corporation to, the holders of any class or series of Common Stock or any other class
or series of capital stock of the Corporation ranking, by its respective terms, junior as to
liquidation rights to the Series A Preferred Stock.



     3.04 Merger, Consolidation or Reorganization. For purposes of this Article 3, at the option of
the holders of a majority of the then outstanding shares of Series A Preferred Stock (with any such
election binding upon all holders of Series A Preferred Stock), voting as a separate class, the
following events shall be deemed to be a “Deemed Liquidation Event”: (i) consolidation or
merger of the Corporation with or into any other corporation or other entity, or any other
reorganization, in which the stockholders of the Corporation immediately prior to such
consolidation, merger or other reorganization own capital stock of the entity surviving such
merger, consolidation or reorganization representing less than fifty (50%) percent of the combined
voting power of the outstanding securities of such entity resulting or surviving immediately after
such consolidation, merger or reorganization; (ii) any transaction or series of related
transactions in which capital stock representing in excess of fifty (50%) percent of the
Corporation’s voting power is transferred to any single entity or group of related entities (except
as a result of the issuance or exercise of the WayPoint Warrants (hereinafter defined) by the
holder thereof); or (iii) a sale, lease, or other disposition (but not including a transfer by
pledge or mortgage to a bona fide lender) of all or substantially all of the assets of the
Corporation (any of the foregoing transactions shall be referred to herein as an “Extraordinary
Transaction”). In the event the holders of the Series A Preferred Stock receive non-cash
consideration upon the



			
	 	 	 
	Series A Preferred Stock

	 	Page 3











 









 










occurrence of any of the foregoing events, the value of such non-cash consideration shall be
deemed to be its fair market value as determined in good faith by the Board of Directors.




ARTICLE 4

REDEMPTION OF SERIES A PREFERRED STOCK




     4.01 Voluntary Redemption. Any and all outstanding shares of the Series A Preferred Stock shall
be subject to voluntary redemption by the Corporation (subject to the restrictions imposed herein
and by Delaware law) after the sixth anniversary (such date the Corporation exercises its
redemption right being referred to henceforth as the
“Voluntary Redemption Date”) of the date hereof, at the purchase price per share ($1.00).



     4.02 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 Voluntary Redemption Date. The Shares shall
be redeemed upon payment by the Corporation to the Holder of the purchase price per share ($1.00),
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 Series A Preferred Stock held by Holder in relation to the number of shares of Series A
Preferred Stock issued and outstanding as of the record date for redemption, at any time it elects
to redeem the Series A Preferred Stock in part. Any redemption hereunder shall be subject to
restrictions imposed by Delaware law regarding the circumstances under which such redemption may be
effected.




          b. Payment Procedures. To facilitate the redemption of any shares of Series A Preferred Stock,
as provided in this Article 4, the Board of Directors shall be authorized to cause the transfer
books of the Corporation to be closed not more than 10 days prior to the Voluntary Redemption Date,
as applicable. Any notice mailed by the 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 shareholder of the
Corporation with respect to the Shares redeemed, except the right to receive the redemption price
and any declared and unpaid dividends, shall cease and terminate.




          c. Delivery of Certificates. The Holder shall be entitled to receive the redemption price 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 (or in lieu of providing the certificate or certificates, if
the holder notifies the Corporation or its transfer agent that such certificates have been lost,
stolen or destroyed and executed an agreement reasonably satisfactory to the Corporation to
indemnify the Corporation from any loss incurred by it in connection with such certificate or
certificates, the foregoing shall suffice). Series A Preferred




			
	 	 	 
	Series A Preferred Stock
	 	Page 4











 









 










Stock redeemed pursuant to the provisions of this Section may, in the sole discretion of the
Board of Directors, be held in the treasury of the Corporation or retired and canceled and given
the status of authorized and unissued Series A Preferred Stock.




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




ARTICLE 5

CONVERSION RIGHTS




     5.01 Right to Convert. Each share of Series A Preferred Stock shall be convertible, at the
option of the holder thereof, at any time after the date of issuance of such share at the office of
the Corporation or any transfer agent for the Series A Preferred Stock without payment of any
additional consideration. Each share of Series A Preferred Stock shall be convertible into such
number of fully paid and non-assessable shares of Common Stock as is determined by dividing the
Original Purchase Price of the Series A Preferred Stock (as defined below) by its respective Series
A Preferred Conversion Price (as defined below), subject to adjustments in effect at the time of
conversion as provided below. The conversion price for the Series A Preferred Stock shall initially
be the Original Purchase Price of the Series A Preferred Stock with respect to each share of
Preferred Stock (the “Series A Preferred Conversion Price”). As of the date hereof, the
“Original Purchase Price of Series A Preferred Stock” is $1.00 per share, therefore, the
Series A Preferred Conversion Price is $1.00. Accordingly, as of the date hereof, each share of
Series A Preferred Stock shall convert into one share of Common Stock, with the foregoing being
subject to further adjustment as set forth below.



     5.02 Mechanics of Conversion. No fractional shares of Common Stock shall be issued upon
conversion of Series A Preferred Stock. In lieu of any fractional shares to which the holder would
otherwise be entitled, the Corporation shall pay cash equal to such fraction multiplied by the then
effective Series A Preferred Conversion Price. Before any holder of Series A Preferred Stock shall
be entitled to convert the same into full shares of Common Stock and to receive certificates
therefor, the holder shall surrender the certificate or certificates therefor, duly endorsed (or in
lieu of providing the certificate or certificates, if the holder notifies the Corporation or its
transfer agent that such certificates have been lost, stolen or destroyed and executes an agreement
reasonably satisfactory to the Corporation to indemnify the Corporation from any loss incurred by
it in connection with such certificates, the foregoing shall suffice), at the office of the
Corporation or of any transfer agent for the Series A Preferred Stock, and shall give written
notice to the Corporation at such office that the holder elects to convert the same. The
Corporation shall, promptly after such delivery, or such agreement and indemnification in the case
of a lost certificate, issue and deliver at such office to such holder of Series A Preferred Stock
a certificate or certificates for the number of shares of Common Stock to which such holder shall
be entitled as aforesaid and a check payable to the holder in the amount of any cash amounts
payable as the result of a conversion into fractional shares of Common Stock. Such conversion shall
be deemed to have been made immediately prior to the close of business on the date of such
surrender of the shares of Series A Preferred Stock to be converted, and the person or persons
entitled to receive the shares of Common Stock issuable upon such conversion shall be treated for
all purposes as the record holder or holders of such shares of Common Stock on such date.



			
	 	 	 
	Series A Preferred Stock

	 	Page 5











 









 











     5.03 Adjustment of Series A Preferred Conversion Price.



          a. The Series A Preferred Conversion Price shall be subject to adjustment from time to
time as follows:





          i.
Adjustment for Subdivisions, Combinations or Consolidation of Common
Stock. In the event that the outstanding shares of Common Stock shall be subdivided (by
forward stock split or other like occurrence) into a greater number of shares of Common
Stock, and no equivalent subdivision or increase is made with respect to the Series A
Preferred Stock, the Series A Preferred Conversion Price then in effect shall, concurrently
with the effectiveness of such subdivision or other increase, be proportionately decreased.
In the event that the outstanding shares of Common Stock shall be combined or consolidated
into a lesser number of shares of Common Stock (by reverse split or otherwise), and no
equivalent combination or consolidation is made with respect to the Series A Preferred
Stock, the Series A Preferred Conversion Price then in effect shall, concurrently with the
effectiveness of such combination or consolidation, be proportionately increased.




          ii. Adjustments for Stock Dividends and Other Distributions. If the
Corporation at any time pays a dividend, with respect to its Common Stock only, payable in
shares of Common Stock or rights to purchase shares of Common Stock, without any
comparable payment or distribution to the holders of Series A Preferred Stock, then the
Series A Preferred Conversion Price shall be proportionally reduced as at the date the
Corporation fixes as a record date for the purpose of receiving such dividend (or if no
such record date is fixed, as at the date of such payment) to that price determined by
multiplying the Series A Conversion Price in effect immediately prior to such record date
(or if no record date is fixed then immediately prior to such payment) by a fraction (x)
the numerator of which shall be the total number of shares of Common Stock outstanding and
those issuable with respect to other securities or rights convertible into, or entitling
the holder thereof to receive directly or indirectly, additional shares of Common Stock
(“Common Stock Equivalents”), prior to the payment of such dividend, and (y) the
denominator of which shall be the total number of shares of Common Stock outstanding and
those issuable with respect to such shares of Common Stock Equivalents immediately after
the payment of such dividend (plus, in the event that the Corporation paid cash for
fractional shares, the number of additional shares which would have been outstanding had
the Corporation issued fractional shares in connection with such dividend).




          iii. Adjustments for Reclassification, Exchange and Substitution. If any
capital reorganization or reclassification of the capital stock of the Corporation (other
than as a result of a stock dividend, subdivision or combination of shares or any other
event described in Section 5.03(a) (a “Corporate Change”) or a merger or
consolidation of the Corporation with or into another Corporation shall be effected in such
a way that holders of Common Stock shall be entitled to receive capital stock, other
securities or property with respect to or in exchange for Common Stock, then, as a
condition of such Corporate Change, lawful and adequate provisions shall be made whereby
each holder of a share or shares of Series A Preferred Stock shall, upon conversion,
receive such kind



			
	 	 	 
	Series A Preferred Stock

	 	Page 6











 









 












and shares of capital stock, other securities or property as may be issued or payable
with respect to or in exchange for the number of shares of such Common Stock into which
the Series A Preferred Stock held at the time of such Corporate Change shall have been
convertible. In the event of any Corporate Change, appropriate adjustment shall be made in
the application of the provisions herein set forth with respect to the rights and
interests thereafter of the holders of the Series A Preferred Stock, to the end that the
provisions set forth herein shall thereafter be applicable, as nearly as reasonably may
be, in relation to any shares of capital stock or other securities thereafter receivable
upon conversion of the Series A Preferred Stock. The Corporation shall not effect any
Corporate Change unless, prior to the consummation of such Corporate Change, the successor
or combined corporation (if other than the Corporation) or the acquiring corporation, by
written instrument, undertakes the obligations of the Corporation described in the first
sentence of this Section 5.03(a)(iii) and assumes the obligation to deliver to each holder
of Series A Preferred Stock such shares of capital stock or other securities that the
holder is entitled to receive in accordance with this Section 5.03(a)(iii). An adjustment
made pursuant to this Section 5.03(a)(iii) shall become effective at the time at which
such Corporate Change becomes effective.



          b. Adjustments of Series A Conversion Price for Diluting Issues. In addition to the
adjustment of the Series A Preferred Conversion Price provided in Section 5.03(a) above, the Series
A Preferred Conversion Price shall be subject to further adjustment from time to time as follows:





(A) Special Definitions. For purposes of this Section 5.03(b),
the following definitions shall apply:




          (1) “Options” shall mean rights, options or warrants to
subscribe for, purchase or otherwise acquire either Common Stock or
Convertible Securities.




          (2) “Original Issue Date” shall mean the date on which the
first share of Series A Preferred Stock was first issued.




          (3) “Convertible Securities” shall mean securities convertible
into or exchangeable for Common Stock.




          (4) “Additional Shares of Common Stock”
shall mean all shares of Common Stock issued (or, pursuant to
Section 5.03(b)(C) below, deemed to be issued) by the Corporation
after the Original Issue Date, other than shares of Common Stock
issued (or, pursuant to Section 5.03(b)(C) below), deemed to be
issued):




          (I) upon conversion of shares of Series A Preferred
Stock;



			
	 	 	 
	Series A Preferred Stock
	 	Page 7











 









 












          (II) pursuant to options, warrants or other rights
issued or issuable to employees, officers or directors of, or
consultants or advisors to the Corporation or any subsidiary,
pursuant to equity incentive plans or other employee benefit
arrangements approved by the Board of Directors;




          (III) as a dividend or other distribution on the Series A
Preferred Stock or pursuant to clause (i), (ii) or (iii) of
Section 5.03(a);




          (IV) issued or issuable pursuant to any rights or
agreements, stock options, warrants or convertible securities
outstanding as of the date hereof;




          (V) issued or issuable for consideration other than cash
pursuant to a merger, consolidation, strategic alliance,
acquisition or similar business combination;




          (VI) issued or issuable pursuant to any equipment loan or
leasing arrangement, real property leasing arrangement, or
debt financing from a bank or similar financial or lending
institution;




          (VII) upon the exercise of any warrants issued to any
placement agent or its designees in connection with the
placement of the Series A Preferred Stock; or




          (VIII) issued or issuable pursuant to the WayPoint
Warrants (hereinafter defined), including the issuance of
the WayPoint Warrants.



               (B) No Adjustment of Series A Preferred Conversion Price. No
adjustment in Series A Preferred Conversion Price shall be made in respect of the issuance of
Additional Shares of Common Stock unless the consideration per share for an Additional Share of
Common Stock issued or deemed to be issued by the Corporation is at least $0.01 less than Series A
Preferred Conversion Price in effect on the date of and immediately prior to such issue; provided
that any adjustment in an amount less than $0.01 per share shall be carried forward and taken into
account in any subsequent adjustment.



               (C) Deemed Issue of Additional Shares of Common Stock. In the event the Corporation at
any time or from time to time after the Original Issue Date shall issue any Options or Convertible
Securities or shall fix a record date for the determination of any holders of any class of
securities entitled to receive any such Options or Convertible Securities, then the maximum number
of shares (as set forth in the instrument relating thereto without



			
	 	 	 
	Series A Preferred Stock

	 	Page 8











 









 










regard to any provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of Convertible Securities
and Options therefor, the conversion or exchange of such Convertible Securities, shall be deemed to
be Additional Shares of Common Stock issued as of the time of such issue or, in case such a record
date shall have been fixed, as of the close of business on such record date, provided that in any
such case in which additional shares of Common Stock are deemed to be issued:





     (1) no further adjustment in the Series A Conversion Price
shall be made upon the subsequent issue of Convertible Securities or
shares of Common Stock upon the exercise of such Options or
conversion or exchange of such Convertible Securities;




     (2) if such Options or Convertible Securities by their terms
provide, with the passage of time or otherwise, for any increase or
decrease in the consideration payable to the Corporation, or
increase or decrease in the number of shares of Common Stock
issuable, upon the exercise, conversion or exchange thereof, the
Series A Conversion Price computed upon the original issue thereof
(or upon the occurrence of a record date with respect thereto), and
any subsequent adjustments based thereon, shall, upon any such
increase or decrease becoming effective, be recomputed to reflect
such increase or decrease insofar as it affects such Options or the
rights of conversion or exchange under such Convertible Securities;




     (3) upon the expiration of any such Options or any rights of
conversion or exchange under such Convertible Securities which shall
not have been exercised, the Series A Conversion Price computed upon
the original issue thereof (or upon the occurrence of a record date
with respect thereto), and any subsequent adjustments based thereon,
shall, upon such expiration, be recomputed to reflect the issuance
of only the number of shares of Common Stock that were actually
issued upon the exercise of such Options or upon the conversion or
exchange of such Convertible Securities.




(D) Adjustment of Conversion Price Upon Issuance of Additional Shares of Common
Stock.



                    (1) In the event that during the Full Ratchet Period (defined
below) the Corporation shall issue Additional Shares of Common Stock (including Additional Shares
of Common Stock deemed to be issued pursuant to Section 5.03(b)(C) above) without consideration or
for a consideration per share less than the Series A Preferred Conversion Price in effect on the
date of and immediately prior to such issue then and in each such event, the Series A Preferred
Conversion Price shall be reduced concurrently with such issue to a price equal to the
consideration per share received by the Corporation for such issue or deemed issue of the
Additional Shares of Common Stock; provided that if such issuance or deemed
issuance



			
	 	 	 
	Series A Preferred Stock

	 	Page 9











 









 










was without consideration, then the Corporation shall be deemed to have received an aggregate
of $.01 of consideration for all such Additional Shares of Common Stock issued or deemed to be
issued. For purposes of this Section 5.03(b)(D), “Full Ratchet Period” shall mean the
period commencing on the date of the final closing of the Corporation’s Series A Preferred Stock
private offering (the “Series A Preferred Offering”) and ending upon the two year
anniversary of such final closing.




                    (2) Except as otherwise addressed pursuant to Section 5.03(a),
in the event that after the Full Ratchet Period, the Corporation shall issue Additional Shares of
Common Stock (including Additional Shares of Common Stock deemed to be issued pursuant to Section
5.03(b)(C)) without consideration or for a consideration per share less than the Series A Preferred
Conversion Price in effect on the date of and immediately prior to such issue then and in each such
event, then the Series A Preferred Conversion Price shall be reduced concurrently with such issue
to a price (calculated to the nearest cent) determined in accordance with the following weighted
average formula:









Where:




CP is the adjusted Series A
Preferred Conversion Price;




A is the number of shares of
Common Stock on an as
converted basis (assuming the
exercise or conversion of all
options or convertible
securities that are then
exercisable or convertible
and (without duplication) the
issuance of all shares of
Common Stock deemed to be
issued pursuant to Section
5.03(b)(C)), outstanding
immediately prior to the
relevant issuance of the
Additional Shares of Common
Stock;




P’ is the Series A Preferred
Conversion Price in effect
immediately prior to such
issuance;



			
	 	 	 
	Series A Preferred Stock
	 	Page 10











 









 












C is the number of
Additional Shares of Common
Stock issued in such
transaction; and




P” is the price per share of
the Additional Shares of
Common Stock.



     (E) Determination of Consideration. For purposes of this Section, the consideration
received by the Corporation for the issue of any Additional Shares of Common Stock shall be
computed as follows:



          (I) Cash and Property: Such consideration shall:





     (a) insofar as it consists of cash, be computed at the aggregate amount of cash
received by the Corporation prior to amounts paid or payable for accrued interest or
accrued dividends and after any commissions or expenses paid by the Corporation;




     (b) insofar as it consists of property other than cash, be computed at the fair
value thereof at the time of such issue, as determined in good faith by the Board of
Directors; and




     (c) in the event Additional Shares of Common Stock are issued together with
other shares or securities or other assets of the Corporation (“Related Securities”)
for consideration which covers both, be the proportion of such consideration so
received, computed as provided in clauses (I) and (II) above, as determined in good
faith by the Board, based on the actual consideration paid for the Additional Shares
of Common Stock less the fair market value of the Related Securities.




(II) Options and Convertible Securities. The consideration per share
received by the Corporation for Additional Shares of Common Stock deemed to have
been issued pursuant to Section 5.03(b)(C), relating to Options and Convertible
Securities, shall be determined by dividing (x) the total amount, if any, received
or receivable by the Corporation as consideration for the issue of such Options or
Convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard to
any provision contained therein for a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise of such Options or the conversion or
exchange of such Convertible Securities, or in the case of Options for Convertible
Securities, the exercise of such Options for Convertible Securities and the
conversion or exchange of such Convertible Securities, by (y) the maximum number of
shares of Common Stock (as set forth in the instruments relating thereto, without
regard to any provision contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or the conversion or exchange of
such Convertible Securities.



			
	 	 	 
	Series A Preferred Stock

	 	Page 11











 









 











          c. For purposes of adjustments to the Conversion Price set forth in this Section
5.03, the following shall be applicable:




               i. The number of shares of Common Stock outstanding at any given time does not include shares
owned or held by or for the account of the Corporation or any subsidiary, and the disposition of
any shares so owned or held shall be considered an issue or sale of Common Stock; and



               ii. In the case of the issuance of Common Stock for cash consideration, the consideration
shall be deemed to be the amount of cash paid therefore before deducting any discounts,
commissions or other expenses allowed, paid or incurred by the Corporation for any underwriting or
otherwise in connection with the issuance and sale therefore.



     5.04 No Impairment. The Corporation will not, by amendment of its Certificate of Incorporation
or through any reorganization, transfer of assets, consolidation, merger, dissolution, issue or
sale of securities or any other action, avoid or seek to avoid the observance or performance of any
of the terms to be observed or performed hereunder by the Corporation but will at all times in good
faith assist in the carrying out of all the provisions of this Section 5 and in the taking of all
such action as may be necessary or appropriate in order to protect the Conversion Rights of the
holders of the Series A Preferred Stock against impairment.



     5.05 Certificate as to Adjustments. Upon the occurrence of each adjustment or readjustment of
the Series A Preferred Conversion Price pursuant to this Section 5, the Corporation at its expense
shall promptly compute such adjustment or readjustment in accordance with the terms hereof and
furnish to each holder of Series A Preferred Stock a certificate setting forth such adjustment or
readjustment and showing in detail the facts upon which such adjustment or readjustment is based.
The Corporation shall, upon the written request at any time of any holder of Preferred Stock,
furnish or cause to be furnished to such holder a like certificate setting forth (i) such
adjustments and readjustments, (ii) the Preferred Conversion Price, at the time in effect, and
(iii) the number of shares of Common Stock and the amount, if any, of other property which at the
time would be received upon the conversion of the Preferred Stock.



     5.06 Status of Converted Stock. Series A Preferred Stock converted pursuant to the provisions
of this Article may, in the sole discretion of the Board of Directors, be held in the treasury of
the Corporation or retired and canceled and given the status of authorized and unissued Series A
Preferred Stock.



ARTICLE 6

VOTING RIGHTS




     6.01 Voting Rights. Subject to Article 7, the holders of shares of Series A Preferred Stock
shall vote together with the holders of shares of Common Stock on an as-if-converted basis with
the Common Stock on all matters to be voted on or consented to by the stockholders of the
Corporation, except as may otherwise be required under the General Corporation Law of the State of
Delaware. With respect to any such vote or consent, each holder of Series A



			
	 	 	 
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Preferred Stock shall be entitled to the number of votes that such holder would have if the
Series A Preferred Stock held by such holder were converted into Common Stock in accordance with
Article 5 hereof on the record date for determination of holders of Common Stock entitled to
participate in such vote or action by consent.




ARTICLE 7

PROTECTIVE PROVISIONS




     7.01 Protective Provisions. Subject to the last sentence of this Section 7.01, for so long as
the Series A Preferred Stock remains outstanding, the consent of the holders of 66.66% of the then
outstanding Series A Preferred Stock, voting together as a class, shall be required for the
Corporation to take any of the following actions (a) effecting a reclassification or
recapitalization of the outstanding capital stock of the Corporation, (b) redeeming shares of
Series A Preferred Stock (except as set forth in Article 4) or Common Stock (excluding (i) 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 cost upon the occurrence of certain events, such as the
termination of employment and (ii) the repurchase of the Corporation’s Common Stock and the
WayPoint Warrants (as hereinafter defined) upon exercise of that certain put right granted to
WayPoint NYTEX, LLC (“WayPoint”) in connection with the sale of the Corporation’s Series B
Redeemable Preferred Stock (“Series B Redeemable Preferred Stock”) and warrants (the
“WayPoint Warrants”) to WayPoint pursuant to that certain Preferred Stock and Warrant
Purchase Agreement by and among the Corporation, WayPoint and NYTEX FDF Acquisition, Inc.), (c)
effecting a liquidation, dissolution, recapitalization or reorganization of the Corporation or
entering into any license that has the same economic effect as a liquidation of the Corporation,
(d) authorizing or issuing capital stock with rights or privileges that are equal to or superior to
the Series A Preferred Stock (except for the Series B Redeemable Preferred Stock issued
contemporaneously herewith), or (e) amending or repealing any provision of, or adding any provision
to, the Corporation’s Certificate of Incorporation or Bylaws to change the rights of the Series A
Preferred or increase or decrease the number of authorized shares of Series A Preferred.
Notwithstanding anything contained in this Section 7.01, the foregoing protective provisions shall
terminate and be of no further force and effect upon the full exercise of the WayPoint Warrants
provided that such exercise provides the holder of the WayPoint Warrants with 51% or more of the
outstanding Common Stock of the Corporation.



ARTICLE 8

RECORD DATE; RESERVATION OF SHARES




     8.01 Notices of Record Date. In the event that the Corporation shall at any time: (a) declare
any dividend or distribution upon any class or series of capital stock, whether in cash, property,
capital stock or other securities; (b) effect any reclassification or recapitalization of its
Common Stock outstanding involving a change in the Common Stock; (c) merge or consolidate with or
into any other corporation or other entity; (d) or sell, lease or convey all or substantially all
of its property or business or (e) liquidate, dissolve or wind up; then, in connection with each
such event, the Corporation shall mail to each holder of Series A Preferred Stock:



			
	 	 	 
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     (i) at least twenty (20) days’ prior written notice of the date on which a
record shall be taken for such dividend or distribution (and specifying the date on which
the holders of the affected class or series of capital stock shall be entitled thereto) or
for determining the rights to vote, if any, in respect of the matters referred to in
clauses (b), (c), (d) and (e) in this Section 8.01; and




     (ii) in the case of the matters referred to in clauses (b), (c) and (d) in this
Section 8.01 written notice of such impending transaction not later than twenty (20) days
prior to the stockholders’ meeting called to approve such transaction, or twenty (20) days
prior to the closing of such transaction, whichever is earlier, and shall also notify such
holder in writing of the final approval of such transaction. The first of such notices
shall describe the material terms and conditions of the impending transaction (and specify
the date on which the holders of shares of Common Stock shall be entitled to exchange their
Common Stock for capital stock, other securities or property deliverable upon the
occurrence of such event) and the Corporation shall thereafter give such holders prompt
notice of any material changes. The transaction shall in no event take place sooner than
twenty (20) days after the Corporation has given the first notice provided for herein or
ten (10) days after the Corporation has given notice of any material changes provided for
herein.



     8.02 Reservation of Shares. The Corporation shall, at all times during which shares of Series
A Preferred Stock may be converted into Common Stock, reserve and keep available, out of any Common
Stock held as treasury stock or out of its authorized and unissued Common Stock, or both, solely
for the purpose of delivery upon conversion of the shares of Series A Preferred Stock as herein
provided, such number of shares of Common Stock as shall then be sufficient to effect the
conversion of all shares of Series A Preferred Stock from time to time outstanding and shall take
such action as may from time to time be necessary to ensure that such shares of Common Stock will,
when issued upon conversion of Series A Preferred Stock, be fully paid and nonassessable.



ARTICLE 9




MISCELLANEOUS



     9.01 Headings of Sections. The headings of the various Sections hereof are for convenience of
reference only and shall not affect the interpretation of any of the provisions hereof.



     9.02 Severability of Provisions. If any right, preference or limitation of the Series A
Preferred Stock set forth herein is invalid, unlawful or incapable of being enforced by reason of
any rule of law or public policy, all other rights, preferences and limitations set forth in this
resolution that can be given effect without the invalid, unlawful or unenforceable right,
preference or limitation shall, nevertheless, remain in full force and effect, and no right,
preference or limitation herein set forth shall be deemed dependent upon any other such right,
preference or limitation unless so expressed herein.



			
	 	 	 
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     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:  	/s/ Michael K. Galvis
 	 
	 	 	Michael K. Galvis 	 
	 	 	President and CEO 	 
	 



			
	 	 	 
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