exv10w21









    Exhibit 10.21



 




    EXECUTION
    COPY



 




    INDEMNIFICATION
    AGREEMENT



 



    This INDEMNIFICATION AGREEMENT is made and entered into as of
    November 23, 2010 (this “Agreement”),
    between NYTEX Energy Holdings, Inc., a Delaware corporation (the
    “Company”), and Thomas Drechsler
    (“Indemnitee”).



 



    WHEREAS, it is essential to the Company to attract and
    retain as directors and officers capable individuals;



 



    WHEREAS, Indemnitee performs a valuable service for the
    Company;



 



    WHEREAS, the Company’s Certificate of Incorporation
    (the “Certificate”), provides for the
    indemnification of the officers and directors of the Company to
    the fullest extent permitted by applicable law
    (“Law”);



 



    WHEREAS, the Board of Directors of the Company (the
    “Board”) has adopted Bylaws (the
    “Bylaws”) providing for the indemnification of
    the officers and directors of the Company;



 



    WHEREAS, the Certificate, the Bylaws and the Law, by
    their nonexclusive nature, permit contracts between the Company
    and the officers or directors of the Company with respect to
    indemnification of such officers or directors;



 



    WHEREAS, in accordance with the authorization as provided
    by the Law, the Company shall purchase and maintain a policy or
    policies of directors’ and officers’ liability
    insurance (“D&O Insurance”), covering
    certain liabilities which may be incurred by its officers or
    directors in the performance of their obligations to the Company;



 



    WHEREAS, Indemnitee has certain rights to indemnification
    and/or
    insurance provided by the Company as provided herein, with the
    Company’s acknowledgement and agreement to the foregoing
    being a material condition to Indemnitee’s willingness to
    serve on the Board; and



 



    WHEREAS, in order to induce Indemnitee to serve as a
    director of the Company, the Company has determined and agreed
    to enter into this Agreement with Indemnitee.




 



    NOW, THEREFORE, for good and valuable consideration, the
    receipt and sufficiency of which are hereby acknowledged, the
    parties hereto agree as follows:





 



    Section 1.  Indemnity
    of Indemnitee.




 



    The Company hereby agrees to hold harmless and indemnify
    Indemnitee to the fullest extent permitted by law, as such may
    be amended from time to time, and in accordance with all
    provisions in this Agreement. In furtherance of the foregoing
    indemnification, and without limiting the generality thereof:




 



    (a) Proceedings Other Than Proceedings by or in the
    Right of the Company.  Indemnitee shall be
    entitled to the rights of indemnification provided in this
    Section 1 if, by reason of his Corporate Status (as
    hereinafter defined), Indemnitee is made, or is threatened to be
    made, a party to or participant in any Proceeding (as
    hereinafter defined) other than a Proceeding by or in the right
    of the Company. Pursuant to this Section 1(a), Indemnitee
    shall be indemnified to the fullest extent permitted by
    applicable law against all Expenses (as hereinafter defined),
    judgments, penalties, fines and amounts paid in settlement
    actually and reasonably incurred by Indemnitee or on
    Indemnitee’s behalf in connection with such Proceeding or
    any claim, issue or matter therein, if Indemnitee acted in good
    faith and in a manner Indemnitee reasonably believed to be in or
    not opposed to the best interests of the Company and, with
    respect to any criminal Proceeding, had no reasonable cause to
    believe Indemnitee’s conduct was unlawful.




 



    (b) Proceedings by or in the Right of the
    Company.  Indemnitee shall be entitled to the
    rights of indemnification provided in this Section 1 if, by
    reason of Indemnitee’s Corporate Status, Indemnitee is















 







    made, or is threatened to be made, a party to or participant in
    any Proceeding brought by or in the right of the Company.
    Pursuant to this Section 1(b), Indemnitee shall be
    indemnified to the fullest extent permitted by applicable law
    against all Expenses actually and reasonably incurred by
    Indemnitee or on Indemnitee’s behalf in connection with
    such Proceeding or any claim, issue, or matter therein if
    Indemnitee acted in good faith and in a manner Indemnitee
    reasonably believed to be in or not opposed to the best
    interests of the Company; provided, however, if
    applicable law so provides, no indemnification against such
    Expenses shall be made in respect of any claim, issue or matter
    in such Proceeding as to which Indemnitee shall have been
    finally adjudged to be liable to the Company unless and only to
    the extent that the Court of Chancery of the State of Delaware
    or any court in which such Proceeding was brought shall
    determine upon application that such indemnification may be
    made, despite the adjudication of liability.



 



    (c) Indemnification for Expenses of a Party Who is
    Wholly or Partly Successful.  Notwithstanding
    any other provision of this Agreement, to the extent that
    Indemnitee is, by reason of Indemnitee’s Corporate Status,
    a party to and is successful, on the merits or otherwise, in any
    Proceeding, or in defense of any claim, issue or matter therein,
    in whole or in part, Indemnitee shall be indemnified to the
    maximum extent permitted by law as such may be amended from time
    to time, against all Expenses actually incurred by Indemnitee or
    on Indemnitee’s behalf in connection therewith. If
    Indemnitee is not wholly successful in such Proceeding but is
    successful, on the merits or otherwise, as to one or more but
    less than all claims, issues or matters in such Proceeding, the
    Company shall indemnify Indemnitee against all Expenses actually
    incurred by him or on his behalf in connection with each
    successfully resolved claim, issue or matter. For purposes of
    this Section and without limitation, the termination of any
    claim, issue or matter in such a Proceeding by dismissal, with
    or without prejudice, shall be deemed to be a successful result
    as to such claim, issue or matter.




 



    (d) Indemnification for Expenses of a
    Witness.  Notwithstanding any other provision
    of this Agreement, to the fullest extent permitted by applicable
    law, to the extent that Indemnitee is, by reason of
    Indemnitee’s Corporate Status, a witness in any Proceeding
    to which Indemnitee is not a party, Indemnitee shall be
    indemnified against all Expenses actually incurred by Indemnitee
    or on Indemnitee’s behalf in connection therewith.





 



    Section 2.  Additional
    Indemnity.




 



    In addition to, and without regard to any limitations on, the
    indemnification provided for in Section 1 hereof, the
    Company shall and hereby does indemnify and hold harmless to the
    fullest extent permitted by applicable law Indemnitee against
    all Expenses, judgments, penalties, fines and amounts paid in
    settlement actually incurred by Indemnitee or on
    Indemnitee’s behalf if, by reason of Indemnitee’s
    Corporate Status, Indemnitee is made, or is threatened to be
    made, a party to or participant in any Proceeding (including a
    Proceeding by or in the right of the Company), including,
    without limitation, all liability arising out of, the negligence
    or active or passive wrongdoing of Indemnitee. The only
    limitation that shall exist upon the Company’s obligations
    pursuant to this Agreement shall be that the Company shall not
    be obligated to make any payment to Indemnitee that is finally
    determined (under the procedures, and subject to the
    presumptions, set forth in Sections 5 and 6 hereof) to not
    be permitted by Law.




 



    Section 3.  Contribution
    in the Event of Joint Liability.




 



    (a) In respect of any threatened, pending or completed
    Proceeding in which the Company is jointly liable with
    Indemnitee (or would be if joined in the Proceeding), the
    Company shall pay, in the first instance, the entire amount of
    any judgment or settlement in connection with any Proceeding
    without requiring Indemnitee to contribute to such payment and
    the Company hereby waives and relinquishes any right of
    contribution it may have against Indemnitee. The Company shall
    not enter into any settlement of any Proceeding in which the
    Company is jointly liable with Indemnitee (or would be if joined
    in such Proceeding) unless such settlement provides for a full
    and final release of all claims asserted against Indemnitee.



 



    (b) Without diminishing or impairing the obligations of the
    Company set forth in the preceding subparagraph, if, for any
    reason, Indemnitee shall elect or be required to pay all or any
    portion of any






    

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    judgment or settlement in any threatened, pending or completed
    Proceeding in which the Company is jointly liable with
    Indemnitee (or would be if joined in such Proceeding), the
    Company shall pay to Indemnitee the entire amount of any
    judgment or settlement of such Proceeding without requiring
    Indemnitee to contribute to such payment and the Company hereby
    waives and relinquishes any right of contribution it may have
    against Indemnitee. Indemnitee shall not enter into any
    settlement of any Proceeding in which the Company is jointly
    liable with Indemnitee (or would be if joined in such
    Proceeding) unless such settlement provides for a full and final
    release of all claims asserted against the Company.



 



    (c) The Company hereby agrees to fully indemnify and hold
    Indemnitee harmless from any indemnifiable claims of
    contribution which may be brought by officers, directors or
    employees of the Company other than any indemnitee who may be
    jointly liable with Indemnitee.




 



    (d) To the fullest extent permissible under applicable law,
    if the indemnification provided for in this Agreement is
    unavailable to Indemnitee for any reason whatsoever, the
    Company, in lieu of indemnifying Indemnitee, shall contribute to
    the amount incurred by Indemnitee, whether for judgments, fines,
    penalties, excise taxes, amounts paid or to be paid in
    settlement,
    and/or
    Expenses, in connection with any claim relating to any event
    requiring indemnification of Indemnitee under the Certificate,
    the Bylaws, this Agreement, or of any other resolutions or
    provisions thereof in such proportion as is deemed fair and
    reasonable in light of all of the circumstances of such
    Proceeding in order to reflect (i) the relative benefits
    received by the Company and Indemnitee as a result of the
    event(s)
    and/or
    transaction(s) giving cause to such Proceeding;
    and/or
    (ii) the relative fault of the Company (and its directors,
    officers, employees and agents) and Indemnitee in connection
    with such event(s)
    and/or
    transaction(s).





 



    Section 4.  Advancement
    of Expenses.




 



    Notwithstanding any other provision of this Agreement, the
    Company shall advance, to the fullest extent permitted by law,
    all Expenses incurred by or on behalf of Indemnitee in
    connection with any Proceeding by reason of Indemnitee’s
    Corporate Status within thirty (30) days after the receipt
    by the Company of a statement or statements from Indemnitee
    requesting such advance or advances from time to time, whether
    prior to or after final disposition of such Proceeding. Such
    statement or statements shall include or be preceded or
    accompanied by an undertaking by or on behalf of Indemnitee to
    repay any Expenses advanced if, and only to the extent that, it
    shall ultimately be determined that Indemnitee is not entitled
    to be indemnified against such Expenses. Advances shall include
    any and all Expenses incurred pursuing an action to enforce this
    right of advancement, including Expenses incurred preparing and
    forwarding statements to the Company to support the advances
    claimed. Any advances and undertakings to repay pursuant to this
    Section 4 shall be unsecured and interest free. This
    Section 4 shall not apply to any claim made by Indemnitee
    for which indemnity is excluded pursuant to Section 8
    hereof.




 



    Section 5.  Procedures
    and Presumptions for Determination of Entitlement to
    Indemnification.




 



    It is the intent of this Agreement to secure for Indemnitee
    rights of indemnity that are as favorable as may be permitted
    under the law and public policy of the State of Delaware.
    Accordingly, the parties agree that the following procedures and
    presumptions shall apply in the event of any question as to
    whether Indemnitee is entitled to indemnification under this
    Agreement:



 



    (a) To obtain indemnification under this Agreement,
    Indemnitee shall submit to the Company a written request for
    indemnification or advancement of Expenses, including therein or
    therewith such documentation and information as is reasonably
    available to Indemnitee and is reasonably necessary to determine
    whether and to what extent Indemnitee is entitled to
    indemnification as soon as is reasonably practicable following
    the receipt by Indemnitee of written notice thereof. Such
    written request to the Company shall include a description of
    the nature of the Proceeding and the facts underlying such
    Proceeding, to the extent known. The omission by Indemnitee to
    notify the Company hereunder will not relieve the Company from
    any liability that it may have to Indemnitee hereunder or
    otherwise than under this Agreement, and any delay in so
    notifying the Company shall not constitute a waiver by
    Indemnitee of any rights under this Agreement. The Secretary of
    the Company (or other executive officer if the






    

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    secretary is otherwise unavailable) shall, promptly upon receipt
    of such a request for indemnification, advise the Board in
    writing that Indemnitee has requested indemnification.



 



    (b) If a claim under this Agreement, under any statute, or
    under any provision of the Certificate or Bylaws providing for
    indemnification is not paid in full by the Company within thirty
    (30) days after a written request for payment thereof has
    first been received by the Company, Indemnitee shall, at any
    time thereafter, be entitled to an adjudication in an
    appropriate court of the State of Delaware, or in any other
    court of competent jurisdiction, of Indemnitee’s
    entitlement to such indemnification. Alternatively, Indemnitee,
    at his option, may seek an award in arbitration to be conducted
    by a single arbitrator pursuant to the Commercial Arbitration
    Rules of the American Arbitration Association. The Company shall
    not oppose Indemnitee’s right to seek any such adjudication
    or award in arbitration. In any such action by Indemnitee to
    recover the unpaid amount of the claim, Indemnitee shall also be
    entitled to be paid for the Expenses of bringing such action. It
    shall be a defense to any such action (other than an action
    brought to enforce a claim for Expenses incurred in connection
    with any Proceeding in advance of its final disposition) that
    Indemnitee has not met the standards of conduct which make it
    permissible under applicable law for the Company to indemnify
    Indemnitee for the amount claimed, but the burden of proving
    such defense shall be on the Company, and Indemnitee shall be
    entitled to receive interim payments of Expenses pursuant to
    Section 5 unless and until such defense may be finally
    adjudicated by court order or judgment from which no further
    right of appeal exists. It is the parties’ intention that
    if the Company contests Indemnitee’s right to
    indemnification, the question of Indemnitee’s right to
    indemnification shall be for the court to decide, and neither
    the failure of the Company (including the Board, any committee
    or subgroup of the Board, independent legal counsel or the
    Company’s stockholders) to have made a determination that
    indemnification of Indemnitee is proper in the circumstances
    because Indemnitee has met the applicable standard of conduct
    required by applicable law, nor an actual determination by the
    Company (including the Board, any committee or subgroup of the
    Board, independent legal counsel or the Company’s
    stockholders) that Indemnitee has not met such applicable
    standard of conduct, shall create a presumption that Indemnitee
    has or has not met the applicable standard of conduct.



 



    (c) Indemnitee shall be deemed to have acted in good faith
    if Indemnitee’s action is based on the records or books of
    account of the Enterprise (as defined below), including
    financial statements, or on information supplied to Indemnitee
    by the officers of the Enterprise in the course of their duties,
    or on the advice of legal counsel for the Enterprise or on
    information or records given or reports made to the Enterprise
    by an independent certified public accountant or by an appraiser
    or other expert selected with reasonable care by the Enterprise.
    In addition, the knowledge
    and/or
    actions, or failure to act, of any director, officer, agent or
    employee of the Enterprise shall not be imputed to Indemnitee
    for purposes of determining the right to indemnification under
    this Agreement. Whether or not the foregoing provisions of this
    Section 5(c) are satisfied, it shall in any event be
    presumed that Indemnitee has at all times acted in good faith
    and in a manner Indemnitee reasonably believed to be in or not
    opposed to the best interests of the Company. Anyone seeking to
    overcome this presumption shall have the burden of proof.



 



    (d) The Company acknowledges that a settlement or other
    disposition short of final judgment may be successful if it
    permits a party to avoid expense, delay, distraction, disruption
    and uncertainty. In the event that any Proceeding to which
    Indemnitee is a party is resolved in any manner other than by
    adverse judgment against Indemnitee (including, without
    limitation, settlement of such Proceeding with or without
    payment of money or other consideration) it shall be presumed
    that Indemnitee has been successful on the merits or otherwise
    in such Proceeding. Anyone seeking to overcome this presumption
    shall have the burden of proof.



 



    (e) The termination of any Proceeding or of any claim,
    issue, or matter therein, by judgment, order, settlement, or
    conviction, or upon a plea of nolo contendere or its equivalent,
    shall not (except as otherwise expressly provided in this
    Agreement) of itself adversely affect the right of Indemnitee to
    indemnification or create a presumption that Indemnitee did not
    act in good faith and in a manner which Indemnitee reasonably
    believed to be in or opposed to the best interests of the
    Company or, with respect






    

    4








 







    to any criminal Proceeding, that Indemnitee had reasonable cause
    to believe that Indemnitee’s conduct was unlawful.




 



    Section 6.  Remedies
    of Indemnitee.




 



    (a) In the event that Indemnitee seeks a judicial
    adjudication of Indemnitee’s rights under, or to recover
    damages for breach of, this Agreement, or to recover under any
    D&O Insurance policies maintained by the Company, the
    Company shall pay on Indemnitee’s behalf, in advance, any
    and all expenses (of the types described in the definition of
    Expenses in Section 13(d) of this Agreement) actually
    incurred by Indemnitee in such judicial adjudication, regardless
    of whether Indemnitee ultimately is determined to be entitled to
    such indemnification, advancement of expenses, or insurance
    recovery.




 



    (b) The Company shall be precluded from asserting in any
    judicial proceeding commenced pursuant to this Section 6
    that the procedures and presumptions of this Agreement are not
    valid, binding and enforceable and shall stipulate in any such
    court that the Company is bound by all the provisions of this
    Agreement. The Company shall indemnify Indemnitee against any
    and all Expenses and, if requested by Indemnitee, shall (within
    thirty (30) days after receipt by the Company of a written
    request thereof) advance, to the fullest extent permitted by
    law, such expenses to Indemnitee, which are incurred by
    Indemnitee in connection with any action brought by Indemnitee
    for indemnification or advance of Expenses from the Company
    under this Agreement or under any D&O Insurance policies
    maintained by the Company, regardless of whether Indemnitee
    ultimately is determined to be entitled to such indemnification,
    advancement of Expenses, or insurance recovery, as the case may
    be.




 



    (c) Notwithstanding anything in this Agreement to the
    contrary, unless required by law, no determination as to
    entitlement to indemnification under this Agreement shall be
    required to be made prior to the final disposition of the
    Proceeding.




 



    Section 7.  Non-Exclusivity;
    Survival of Rights; Insurance; Subrogation.




 



    (a) The rights of indemnification as provided by this
    Agreement shall not be deemed exclusive of any other rights to
    which Indemnitee may at any time be entitled under applicable
    law, the Certificate, the Bylaws, any agreement, a vote of
    stockholders, a resolution of directors, or otherwise. No
    amendment, alteration, or repeal of the Certificate, the Bylaws,
    this Agreement or of any other provision hereof shall limit or
    restrict any right of Indemnitee under this Agreement in respect
    of any action taken or omitted by such Indemnitee in
    Indemnitee’s Corporate Status prior to such amendment,
    alteration or repeal. To the extent that a change in the law,
    whether by statute or judicial decision, permits greater
    indemnification than would be afforded currently under the
    Certificate, the Bylaws and this Agreement, it is the intent of
    the parties hereto that Indemnitee shall enjoy by this Agreement
    the greater benefits so afforded by such change. To the extent
    that a change in the law, whether by statute or judicial
    decision, limits the indemnification rights that would be
    afforded currently under the Certificate, the Bylaws and this
    Agreement, it is the intent of the parties hereto that such
    change, to the extent not otherwise required by such law,
    statute, or rule to be applied to this Agreement, shall have no
    effect on this Agreement or the parties’ rights and
    obligations hereunder. No right or remedy herein conferred is
    intended to be exclusive of any other right or remedy, and every
    other right and remedy shall be cumulative and in addition to
    every other right and remedy given hereunder or now or hereafter
    existing at law or in equity or otherwise. The assertion or
    employment of any right or remedy hereunder, or otherwise, shall
    not prevent the concurrent assertion or employment of any other
    right or remedy. The indemnification provided under this
    Agreement shall continue as to Indemnitee for any action taken
    or not taken while serving in an indemnified capacity even
    though he may have ceased to serve in such capacity at the time
    of any action or other covered Proceeding.



 



    (b) To the extent that the Company maintains an insurance
    policy or policies providing liability insurance for directors,
    officers, employees or agents or fiduciaries of the Company or
    of any other corporation, partnership, joint venture, trust,
    employee benefit plan or other enterprise which such person
    serves at the request of the Company, Indemnitee shall be
    covered by such policy or policies in accordance with its or
    their terms to the maximum extent of the coverage available for
    any such director, officer, employee, agent or fiduciary under
    such policy or policies.





    

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    (c) In the event of any payment under this Agreement, the
    Company shall be subrogated to the extent of such payment to all
    of the rights of recovery of Indemnitee, who shall execute all
    papers required and take all action necessary to secure such
    rights, including execution of such documents as are necessary
    to enable the Company to bring suit to enforce such rights.




 



    Section 8.  Exception
    to Right of Indemnification.




 



    Notwithstanding any provision in this Agreement, the Company
    shall not be obligated under this Agreement to make any
    indemnity in connection with any claim made against Indemnitee:



 



    (a) for which payment has actually been made to or on
    behalf of Indemnitee under any insurance policy, except with
    respect to any excess beyond the amount paid under any insurance
    policy; or



 



    (b) in connection with any Proceeding (or any part of any
    Proceeding) initiated by Indemnitee, including any Proceeding
    (or any part of any Proceeding) initiated by Indemnitee against
    the Company or its directors, officers, employees or other
    indemnitees, unless (i) the Board authorized the Proceeding
    (or any part of any Proceeding) prior to its initiation,
    (ii) the Company provides the indemnification, in its sole
    discretion, pursuant to the powers vested in the Company under
    applicable law, (iii) the Proceeding was initiated to
    establish or enforce a right to indemnification under this
    Agreement, any other agreement or insurance policy, or under the
    Bylaws or the Certificate or (iv) as otherwise required
    under the laws of the State of Delaware.




 



    Section 9.  Duration
    of Agreement.




 



    All agreements and obligations of the Company contained herein
    shall continue during the period Indemnitee is a director of the
    Company (or is or was serving at the request of the Company as a
    director, officer, employee or agent of another corporation,
    partnership, joint venture, trust or other enterprise) and shall
    continue thereafter so long as Indemnitee shall be subject to
    any Proceeding (or any proceeding commenced under this
    Agreement) by reason of Indemnitee’s Corporate Status,
    whether or not he is acting or serving in any such capacity at
    the time any liability or expense is incurred for which
    indemnification can be provided under this Agreement.




 



    Section 10.  Period
    of Limitations.




 



    No legal action shall be brought and no cause of action shall be
    asserted by or in the right of the Company against Indemnitee,
    Indemnitee’s estate, spouse, heirs, executors or personal
    or legal representatives after the expiration of two years from
    the date of accrual of such cause of action, and any claim or
    cause of action of the Company shall be extinguished and deemed
    released unless asserted by the timely filing of a legal action
    within such two-year period; provided, however, that if
    any shorter period of limitations is otherwise applicable to any
    such cause of action, such shorter period shall govern.




 



    Section 11.  Security.




 



    To the extent requested by Indemnitee and approved by the Board,
    the Company may at any time and from time to time provide
    security to Indemnitee for the Company’s obligations
    hereunder through an irrevocable bank line of credit, funded
    trust or other collateral. Any such security, once provided to
    Indemnitee, may not be revoked or released without the prior
    written consent of Indemnitee.




 



    Section 12.  Enforcement.




 



    (a) The Company expressly confirms and agrees that it has
    entered into this Agreement and assumes the obligations imposed
    on it hereby in order to induce Indemnitee to serve or continue
    to serve as a director of the Company, and the Company
    acknowledges that Indemnitee is relying upon this Agreement in
    serving as a director of the Company.



 



    (b) This Agreement constitutes the entire agreement between
    the parties hereto with respect to the subject matter hereof and
    supersedes all prior agreements and understandings, oral,
    written and implied, between the parties hereto with respect to
    the subject matter hereof; provided however, that this
    Agreement is a supplement






    

    6








 







    to and in furtherance of the Certificate, the Bylaws and any
    applicable law, and shall not be deemed a substitute thereof,
    nor to diminish or abrogate any rights of Indemnitee thereunder.




 



    Section 13.  Definitions.




 



    For purposes of this Agreement:




 



    (a) “Business Day” means any day
    except Saturday, Sunday or any day on which banks are generally
    not open for business in the City of New York.





 



    (b) “Corporate Status” describes
    the status of a person who is or was a director, officer,
    employee or agent or fiduciary of the Company or of any other
    corporation, partnership, joint venture, trust, employee benefit
    plan or other enterprise that such person is or was serving at
    the request of the Company, including on or prior to the date of
    this Agreement.





 



    (c) “Enterprise” shall mean the
    Company and any other corporation, partnership, joint venture,
    trust, employee benefit plan or other enterprise of which
    Indemnitee is or was serving at the express written request of
    the Company as a director, officer, employee, agent or fiduciary.





 



    (d) “Expenses” shall mean all
    attorneys’ fees, retainers, court costs, transcript costs,
    fees of experts, witness fees, travel expenses, duplicating
    costs, printing and binding costs, telephone charges, postage,
    delivery service fees, and all other disbursements or expenses
    of the types customarily incurred in connection with
    prosecuting, defending, preparing to prosecute or defend,
    investigating, participating, or being or preparing to be a
    witness in a Proceeding.





 



    (e) “Proceeding” includes any
    threatened, pending or completed action, suit, arbitration,
    alternate dispute resolution mechanism, investigation, inquiry,
    administrative hearing or any other actual, threatened or
    completed proceeding, whether brought by or in the right of the
    Company or otherwise and whether civil, criminal, administrative
    or investigative, in which Indemnitee was, is or will be
    involved as a party or otherwise, by reason of the fact that
    Indemnitee is or was an officer or director of the Company, by
    reason of any action taken by Indemnitee or of any inaction on
    Indemnitee’s part while acting as a director of the
    Company, or by reason of the fact that Indemnitee is or was
    serving at the request of the Company as a director, officer,
    employee, agent or fiduciary of another corporation,
    partnership, joint venture, trust or other Enterprise; in each
    case whether or not he is acting or serving in any such capacity
    at the time any liability or expense is incurred for which
    indemnification can be provided under this Agreement; including
    one pending on or before the date of this Agreement.





 



    Section 14.  Severability.




 



    If any provision or provisions of this Agreement shall be held
    by a court of competent jurisdiction to be invalid, void,
    illegal or otherwise unenforceable for any reason whatsoever:
    (a) the validity, legality, and enforceability of the
    remaining provisions of this Agreement (including without
    limitation, each portion of any Section of this Agreement
    containing any such provision held to be invalid, illegal or
    unenforceable that is not itself invalid, illegal, or
    unenforceable) shall not in any way be affected or impaired
    thereby and shall remain enforceable to the fullest extent
    permitted by law; (b) such provision or provisions shall be
    deemed reformed to the extent necessary to conform to applicable
    law and to give the maximum effect to the intent of the parties
    hereto; and (c) to the fullest extent possible, the
    provisions of this Agreement (including, without limitation,
    each portion of any Section of this Agreement containing any
    such provision held to be invalid, illegal, or unenforceable
    that is not itself invalid, illegal, or unenforceable) shall be
    construed so as to give effect to the intent manifested thereby.
    Without limiting the generality of the foregoing, this Agreement
    is intended to confer upon Indemnitee indemnification rights to
    the fullest extent permitted by applicable laws. In the event
    any provision hereof conflicts with any applicable law, such
    provision shall be deemed modified, consistent with the
    aforementioned intent, to the extent necessary to resolve such
    conflict.




 



    Section 15.  Attorneys’
    Fees.




 



    In the event that any action is instituted by Indemnitee under
    this Agreement to enforce or interpret any of the terms hereof,
    Indemnitee shall be entitled to be paid all expenses (of the
    types described in the






    

    7








 







    definition of Expenses in Section 13(d) hereof) incurred by
    Indemnitee with respect to such action. In the event of an
    action instituted by or in the name of the Company under this
    Agreement or to enforce or interpret any of the terms of this
    Agreement, Indemnitee shall be entitled to be paid all expenses
    (of the types described in the definition of Expenses in
    Section 13(d) hereof) in defense of such action (including
    with respect to Indemnitee’s counterclaims and cross claims
    made in such action).



 



    Section 16.  Modification
    and Waiver.



 



    No supplement, modification, termination or amendment of this
    Agreement shall be binding unless executed in writing by both of
    the parties hereto. No waiver of any of the provisions of this
    Agreement shall be deemed or shall constitute a waiver of any
    other provisions hereof (whether or not similar) nor shall such
    waiver constitute a continuing waiver.




 



    Section 17.  Assignment.





 



    This Agreement shall be binding upon and inure to the benefit of
    and be enforceable by the parties hereto and their respective
    successors (including any direct or indirect successor by
    purchase, merger, consolidation or otherwise to all or
    substantially all of the business
    and/or
    assets of the Company), assigns, spouses, heirs, and personal
    and legal representatives. The Company shall require and cause
    any successor (whether direct or indirect by purchase, merger,
    consolidation or otherwise) to all, substantially all or a
    substantial part, of the business
    and/or
    assets of the Company, by written agreement in form and
    substance satisfactory to Indemnitee, expressly to assume and
    agree to perform this Agreement in the same manner and to the
    same extent that the Company would be required to perform if no
    such succession had taken place. This Agreement shall continue
    in effect regardless of whether Indemnitee continues to serve as
    a director, officer, employee, or agent of the Company or of any
    other Enterprise. Indemnitee may not assign his rights hereunder
    without the prior written consent of the Company.





 



    Section 18.  Notice
    by Indemnitee.




 



    Indemnitee agrees to notify the Company in writing within five
    (5) after being served or otherwise receiving with any
    summons, citation, subpoena, complaint, indictment, information
    or other document relating to any Proceeding or matter which may
    be subject to indemnification covered hereunder. The failure to
    so notify the Company shall not relieve the Company of any
    obligation which it may have to the Indemnitee under this
    Agreement or otherwise unless and only to the extent that such
    failure or delay materially prejudices the Company.




 



    Section 19.  Notices.




 



    All notices and other communications given or made pursuant to
    this Agreement shall be in writing and shall be deemed
    effectively given: (a) upon personal delivery to the party
    to be notified, (b) when sent by confirmed electronic mail
    or facsimile if sent during normal business hours of the
    recipient, and if not so confirmed, then on the next Business
    Day, (c) five (5) days after having been sent by
    registered or certified mail, return receipt requested, postage
    prepaid, or (d) one (1) day after deposit with a
    nationally recognized overnight courier, specifying next day
    delivery, with written verification of receipt. All
    communications shall be sent:



 



    To the Indemnitee:



 



    WayPoint Capital Partners, LLC




    555 Theodore Fremd Avenue, Suite C207




    Rye, New York 10580




    Attention: Mr. Thomas W. Drechsler





     Phone: (914) 417-6960





     Facsimile:
    (914) 417-6961





    

    8








 







    With a copy (which shall not constitute notice) to:



 



    Winston & Strawn LLP




    200 Park Avenue




    New York, New York 10166




    Attention: Bradley C. Vaiana





     Phone: (212) 294-2610






     Facsimile: (212) 294-4700




 



    To the Company:



 



    NYTEX Energy Holdings, Inc.




    12222 Merit Drive, Suite 1850




    Dallas, TX 75251




    Attention: Mr. Kenneth Conte




    Phone:
    (972) 770-4700




    Facsimile:
    (972) 770-4701



 



    With a copy (which shall not constitute notice) to:



 



    Strasburger & Price, LLP




    901 Main Street, Suite 4400




    Dallas, TX 75202




    Attention: Kevin Woltjen





     Phone: (214) 651-2344






     Facsimile: (214) 659-4052




 



    or to such other representative or at such other address of a
    party as such party may furnish to the other parties in writing.
    Any notice which is delivered personally or by facsimile or
    other electronic transmission in the manner provided herein
    shall be deemed to have been duly given to the party to whom it
    is directed upon actual receipt by such party or its agent. Any
    notice which is addressed and mailed in the manner herein
    provided shall be conclusively presumed to have been duly given
    to the party to which it is addressed at the close of business,
    local time of the recipient, on the fourth Business Day after
    the day it is so placed in the mail (or on the first Business
    Day after placed in the mail if sent by overnight courier) or,
    if earlier, the time of actual receipt.




 



    Section 20.  Counterparts.




 



    This Agreement may be executed in two or more counterparts, each
    of which shall be deemed an original, but all of which together
    shall constitute one and the same Agreement. This Agreement may
    also be executed and delivered by facsimile signature and in two
    or more counterparts, each of which shall be deemed an original,
    but all of which together shall constitute one and the same
    instrument.






 



    Section 21.  Captions.




 



    The captions of the paragraphs of this Agreement are inserted
    for convenience only and shall not be deemed to constitute part
    of this Agreement or to affect the construction thereof.




 



    Section 22.  Governing
    Law and Consent to Jurisdiction.





 



    This Agreement and the legal relations among the parties shall
    be governed by, and construed and enforced in accordance with,
    the laws of the State of Delaware, without regard to its
    conflict of law rules. The Company and Indemnitee hereby
    irrevocably and unconditionally (i) agree that any action
    or proceeding arising out of or in connection with this
    Agreement shall be brought only in the Chancery Court of the
    State of Delaware (the “Delaware Court”), and
    not in any other state or federal court in the United States of
    America or any court in any other country, (ii) consent to
    submit to the exclusive jurisdiction of the Delaware Court for
    purposes of any action or proceeding arising out of or in
    connection with this Agreement, (iii) waive any objection
    to the laying of venue of any such action or proceeding in the
    Delaware Court, and (iv) waive, and agree not to plead or
    to make, any claim that any such action or proceeding brought in
    the Delaware Court has been brought in an improper or
    inconvenient forum.



  


    

    9








 







    IN WITNESS WHEREOF, the parties hereto have executed this
    Agreement on and as of the day and year first above written.



 



    NYTEX ENERGY HOLDINGS, INC.




 


			
	 	    By: 
	
    /s/  Michael
    K. Galvis


    








     Name:     MICHAEL K. GALVIS






     Title:     PRESIDENT AND CEO




 



    [Signature Page to Parent Indemnification Agreement]





    

    10








 







 



    IN WITNESS WHEREOF, the parties hereto have executed this
    Agreement on and as of the day and year first above written.





 



    NYTEX ENERGY HOLDINGS, INC.





 


			
	 	    By: 
	
    







     Name:     




    Title:



 



    INDEMNITEE




 



    /s/  Thomas
    Drechsler


    







     Name:     Thomas Drechsler




 



    [Signature Page to Parent Indemnification Agreement]





    

    11