REGISTRATION RIGHTS AGREEMENT
Exhibit 10.8
EXECUTION COPY
This Registration Rights Agreement (this “Agreement”) is made and entered into as of November
23, 2010, by and among NYTEX Energy Holdings, Inc. (the “Company”) and the holders listed on the
Schedule of Holders attached hereto as Annex A and identified on the signature pages hereto
(each a “Holder” and collectively, the “Holders”).
The Company and the Holders hereby agree as follows:
1. Definitions. As used in this Agreement, the following terms have the respective
meanings set forth in this Section 1:
“Advice” means written advice given by the Company that the use of an applicable Prospectus
may be resumed.
“Allowable Blackout Period” has the meaning set forth in Section 6(e).
“Blackout Period” has the meaning set forth in Section 6(e).
“Business Day” means any day except Saturday, Sunday and any day which is a federal legal
holiday or a day on which banking institutions in the State of New York are authorized or required
by law or other governmental action to close.
“Commission” means the Securities and Exchange Commission.
“Commission Comments” means written comments pertaining solely to Rule 415 (or which challenge
the right of a Holder to have its Registrable Securities included in a Registration Statement filed
hereunder without being deemed an underwriter) which are received by the Company from the
Commission to a filed Registration Statement, a copy of which shall have been provided by the
Company to the Holders, which either (i) requires the Company to limit the number of Registrable
Securities which may be included therein to a number which is less than the number sought to be
included thereon as filed with the Commission or (ii) requires the Company to either exclude
Registrable Securities held by specified Holders or deem such Holders to be underwriters with
respect to Registrable Securities they seek to include in such Registration Statement.
“Cut Back Shares” has the meaning set forth in Section 2(b).
“Effective Date” means, as to a Registration Statement, the date on which such Registration
Statement is first declared effective by the Commission.
“Effectiveness Date” means (a) with respect to the initial Registration Statement required to
be filed pursuant to Section 2(a), the earlier of: (i) the 90th day following the filing
of
such Registration Statement, and (ii) the fifth Trading Day following the date on which the
Company is notified by the Commission that the initial Registration Statement will not be
reviewed
or is no longer subject to further review and comments; (b) with respect to any additional
Registration Statements required to be filed pursuant to Section 2(a), the earlier of: (i) the
90th day following the applicable Filing Date for such additional Registration
Statement(s) and (ii) the fifth Trading Day following the date on which the Company is notified by
the Commission that the such additional Registration Statement(s) will not be reviewed or is no
longer subject to further review; (c) with respect to any additional Registration Statements
required to be filed solely due to SEC Restrictions, the earlier of: (i) the 90th day
following the applicable Restriction Termination Date and (ii) the fifth Trading Day following the
date on which the Company is notified by the Commission that such Registration Statement will not
be reviewed or is no longer subject to further review and comments; and (d) with respect to a
Registration Statement required to be filed under Section 2(c), the earlier of: (i) the
90th day following the date on which the Company becomes eligible to utilize Form S-3 to
register the resale of the Shares; provided, that, if the Commission reviews and has
written comments to such filed Registration Statement that would require the filing of a
pre-effective amendment thereto with the Commission, then the Effectiveness Date under this clause
(d)(i) shall be the earlier of the 90th day following the date on which the Company
becomes eligible to utilize Form S-3 to register the resale of the Shares, and (ii) the fifth
Trading Day following the date on which the Company is notified by the Commission that the
Registration Statement will not be reviewed or is no longer subject to further review and comments.
“Effectiveness Period” means, as to any Registration Statement required to be filed pursuant
to this Agreement, the period commencing on the Effective Date of such Registration Statement and
ending on the third anniversary of such Effective Date.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Filing Date” means (a) with respect to the initial Registration Statement required to be
filed pursuant to Section 2(a), the 60th day following the demand for such Registration
Statement to be filed; (b) with respect to any additional Registration Statements required to be
filed pursuant to Section 2(a), the 30th day following the Effective Date for the last
Registration Statement filed pursuant to this Agreement under Section 2(a); (c) with respect to any
additional Registration Statements required to be filed due to SEC Restrictions, the
30th day following the applicable Restriction Termination Date; and (d) with respect to
a Registration Statement required to be filed under Section 2(c), the 30th day following
the date on which the Company becomes eligible to utilize Form S-3 to register the resale of the
Shares.
“Holder” or “Holders” means the holder or holders, as the case may be, from time to time of
Registrable Securities.
“Indemnified Party” has the meaning set forth in Section 5(c).
“Indemnifying Party” has the meaning set forth in Section 5(c).
“Losses” has the meaning set forth in Section 5(a).
“New York Courts” means the state and federal courts sitting in the City of New York, Borough
of Manhattan.
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“Person” means an individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any kind.
“Proceeding” means an action, claim, suit, investigation or proceeding (including, without
limitation, an investigation or partial proceeding, such as a deposition), whether commenced or
threatened.
“Prospectus” means the Prospectus included in a Registration Statement (including, without
limitation, a Prospectus that includes any information previously omitted from a Prospectus filed
as part of an effective registration statement in reliance upon Rule 430A promulgated under the
Securities Act), as amended or supplemented by any Prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities covered by a Registration Statement,
and all other amendments and supplements to the Prospectus, including amendments, and all material
incorporated by reference or deemed to be incorporated by reference in such Prospectus.
“Registrable Securities” means: (i) the Shares; (ii) any securities issued or issuable upon
any stock split, dividend or other distribution, recapitalization or similar event, or any price
adjustment as a result of such stock splits, reverse stock splits or similar events with respect to
any of the Shares; and (iii) any securities issued or issuable in connection with the anti-dilution
protection contained in the Warrants. As to any particular Registrable Securities, such securities
shall cease to be Registrable Securities when: (a) a Registration Statement with respect to the
sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged in accordance with such Registration
Statement; (b) such securities shall have ceased to be outstanding, or (c) the Registrable
Securities are saleable without any volume or manner of sale restrictions under Rule 144 of the
Securities Act.
“Registration Statement” means the initial registration statement required to be filed in
accordance with Section 2(a) and any additional registration statements required to be filed under
this Agreement, including in each case the Prospectus, amendments and supplements to such
registration statements or Prospectus, including pre- and post-effective amendments, all exhibits
thereto, and all material incorporated by reference or deemed to be incorporated by reference
therein.
“Restriction Termination Date” has the meaning set forth in Section 2(b).
“Rule 144” means Rule 144 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“Rule 415” means Rule 415 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
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“Rule 424” means Rule 424 promulgated by the Commission pursuant to the Securities Act, as
such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by
the Commission having substantially the same effect as such Rule.
“SEC Restrictions” has the meaning set forth in Section 2(b).
“Securities Act” means the Securities Act of 1933, as amended.
“Shares” means the shares of Common Stock issued or issuable to the Holders pursuant to the
Warrants and any other shares of capital stock of the Company issued or issuable to the Holders
including, without limitation, all securities convertible into, exchangeable for or exercisable
into shares of capital stock of the Company; provided, however, that, solely for
the purposes of determining damages pursuant to Section 3(d), the term “Shares” shall mean only
those shares of Common Stock or other shares of capital stock that are issuable pursuant to an
exercisable Warrant or portion of a Warrant.
“Suspension Notice” has the meaning set forth in Section 6(f).
“Trading Day” means (i) a day on which the Shares are traded on a Trading Market, or (ii) if
the Shares are not quoted on any Trading Market, a day on which the Shares are quoted in the
over-the-counter market as reported by the Pink Sheets LLC (or any similar organization or agency
succeeding to its functions of reporting prices); provided, that in the event that the Shares are
not listed or quoted as set forth in (i) and (ii) hereof, then Trading Day shall mean a Business
Day.
“Trading Market” means whichever of the New York Stock Exchange, the American Stock Exchange,
the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market or OTC
Bulletin Board on which the Shares are listed or quoted for trading on the date in question.
“Warrants” means the Common Stock Purchase Warrants of the Company evidenced by Warrant
Certificate Nos. 1 and 2 and any other Warrants subsequently issued to the Holders.
2. Registration.
(a) Following November 23, 2011, on demand of any Holder, and on or prior to its applicable
Filing Date, the Company shall prepare and file with the Commission a Registration Statement
covering the resale of all Registrable Securities, including for an underwritten offering or for an
offering to be made on a continuous basis pursuant to Rule 415. Each Registration Statement
required to be filed under this Agreement shall be filed on Form S-1 (or if the Company is not then
eligible to utilize such form of registration, it shall utilize such other available form
appropriate for such purpose) and contain (except if otherwise required pursuant to written
comments received from the Commission upon a review of such Registration Statement, other than as
to the characterization of any Holder as an underwriter, which shall not occur without such
Holder’s written consent) the “Plan of Distribution” attached hereto as Annex B (as revised
as required for particular transactions). The Company shall cause each Registration Statement
required to be filed under this Agreement to be declared effective under
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the Securities Act as soon as possible but, in any event, no later than its Effectiveness
Date, and shall use its commercially reasonable efforts to keep each such Registration Statement
continuously effective during its entire Effectiveness Period. By 5:00 p.m. (New York City time)
on the Business Day immediately following the Effective Date of each Registration Statement, the
Company shall file with the Commission in accordance with Rule 424 under the Securities Act the
final Prospectus to be used in connection with sales pursuant to such Registration Statement
(whether or not such filing is technically required under such Rule). If for any reason other than
due solely to SEC Restrictions, a Registration Statement is effective but not all outstanding
Registrable Securities are registered for resale pursuant thereto, then the Company shall prepare
and file by the applicable Filing Date an additional Registration Statement (except those excluded
from the Registration Statement due solely to the SEC Restrictions) to register the resale of all
such unregistered Registrable Securities for an offering to be made on a continuous basis pursuant
to Rule 415.
(b) Notwithstanding anything to the contrary contained in this Section 2, if the Company
receives Commission Comments, and following discussions with and responses to the Commission in
which the Company uses its commercially reasonable efforts and time to cause as many Registrable
Securities for as many Holders as possible to be included in the Registration Statement filed
pursuant to Section 2(a) without characterizing any Holder as an underwriter (and in such regard
uses its commercially reasonable efforts to cause the Commission to permit the affected Holders or
their respective counsel to participate in Commission conversations on such issue together with
counsel to the Company, and timely conveys relevant information concerning such issue with the
affected Holders or their respective counsel), the Company is unable to cause the inclusion of all
Registrable Securities, then the Company may, following not less than three (3) Trading Days prior
written notice to the Holders (i) remove from the Registration Statement such Registrable
Securities (the “Cut Back Shares”) and/or (ii) agree to such restrictions and limitations on the
registration and resale of the Registrable Securities, in each case as the Commission may require
in order for the Commission to allow such Registration Statement to become effective;
provided, that in no event may the Company name any Holder as an underwriter without such
Holder’s prior written consent (collectively, the “SEC Restrictions”). Unless the SEC Restrictions
otherwise require, any cut-back imposed pursuant to this Section 2(b) shall be allocated among the
Registrable Securities of the Holders as determined by those Holders. No liquidated damages under
Section 2(d) shall accrue on or as to any Cut Back Shares, and the required Effectiveness Date for
such Registration Statement will be tolled, until such time as the Company is able to effect the
registration of the Cut Back Shares in accordance with any SEC Restrictions (such date, the
“Restriction Termination Date”). From and after the Restriction Termination Date, all provisions
of this Section 2 (including, without limitation, the liquidated damages provisions, subject to
tolling as provided above) shall again be applicable to the Cut Back Shares (which, for avoidance
of doubt, retain their character as “Registrable Securities”) so that the Company will be required
to file with and cause to be declared effective by the Commission such additional Registration
Statements in the time frames set forth herein as necessary to ultimately cause to be covered by
effective Registration Statements all Registrable Securities (if such Registrable Securities cannot
at such time be resold by the Holders thereof without volume limitations pursuant to Rule 144).
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(c) Promptly following any date on which the Company becomes eligible to use a registration
statement on Form S-3 to register Registrable Securities for resale, the
Company shall file a Registration Statement on Form S-3 covering all Registrable Securities
(or a post-effective amendment on Form S-3 to the then effective Registration Statement) and shall
cause such Registration Statement to be filed by the Filing Date for such Registration Statement
and declared effective under the Securities Act as soon as possible thereafter, but in any event
prior to the Effectiveness Date therefor. Such Registration Statement shall contain (except if
otherwise required pursuant to written comments received from the Commission upon a review of such
Registration Statement, other than as to the characterization of any Holder as an underwriter,
which shall not occur without such Holder’s consent) the “Plan of Distribution” attached hereto as
Annex B. The Company shall use its commercially reasonable efforts to keep such
Registration Statement continuously effective under the Securities Act during the entire
Effectiveness Period. By 5:00 p.m. (New York City time) on the Business Day immediately following
the Effective Date of such Registration Statement, the Company shall file with the Commission in
accordance with Rule 424 under the Securities Act the final Prospectus to be used in connection
with sales pursuant to such Registration Statement (whether or not such filing is technically
required under such Rule).
(d) If: (i) a Registration Statement is not filed on or prior to its Filing Date covering the
Registrable Securities required under this Agreement to be included therein (if the Company files a
Registration Statement without affording the Holders the opportunity to review and comment on the
same as required by Section 3(a) hereof, the Company shall not be deemed to have satisfied this
clause (i)), or (ii) a Registration Statement is not declared effective by the Commission on or
prior to its required Effectiveness Date or if by the Business Day immediately following the
Effective Date, the Company shall not have filed a “final” Prospectus for the Registration
Statement with the Commission under Rule 424(b) in accordance with the terms hereof (whether or not
such a Prospectus is technically required by such Rule), or (iii) except for Allowable Blackout
Periods, after its Effective Date, without regard for the reason thereunder or efforts therefor,
such Registration Statement ceases for any reason to be effective and available to the Holders as
to all Registrable Securities to which it is required to cover at any time prior to the expiration
of its Effectiveness Period for more than an aggregate of 30 Trading Days (which need not be
consecutive) (any such failure or breach being referred to as an “Event,” and for purposes of
clauses (i) or (ii) the date on which such Event occurs, or for purposes of clause (iii) the date
which such 30 Trading Day-period is exceeded, being referred to as “Event Date”), then in addition
to any other rights the Holders may have hereunder or under applicable law, on each such Event Date
and on each monthly anniversary of each such Event Date (if the applicable Event shall not have
been cured by such date) until the applicable Event is cured, the Company shall pay to each Holder
an amount in cash, as liquidated damages and not as a penalty, equal to 1.0% of the aggregate value
as of the date hereof of the Shares held by such Holder; provided that the maximum aggregate
liquidated damages payable to a Holder under this Agreement shall be ten percent (10%) of the
aggregate value as of the date hereof of the Shares held by such Holder. The liquidated damages
pursuant to the terms hereof shall apply on a daily pro-rata basis for any portion of a month prior
to the cure of an Event (except in the case of the first Event Date), and shall cease to accrue
(unless earlier cured) upon the expiration of the Effectiveness Period.
(e) Each Holder agrees to furnish to the Company a completed Questionnaire in the form
attached to this Agreement as Annex C (a “Selling Holder Questionnaire”). The Company
shall not be required to include the Registrable Securities of a Holder in a Registration
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Statement and shall not be required to pay any liquidated or other damages under Section 2(d)
to any Holder who fails to furnish to the Company a fully completed Selling Holder Questionnaire at
least two Trading Days prior to the Filing Date (subject to the requirements set forth in Section
3(a)).
(f) The Company shall have no obligation to keep a Prospectus usable or to give a notice that
a Prospectus is not usable by a particular Holder to the extent such Prospectus is not usable by
such Holder because current information regarding such Holder is not included therein because such
Holder has not provided such information to the Company in accordance with Section 2(e).
(g) If any information furnished to the Company by a Holder for inclusion in a Registration
Statement or Prospectus becomes materially misleading, such Holder agrees (i) to furnish promptly
to the Company all information required to be disclosed in such Registration Statement in order to
make the information previously furnished to the Company not materially misleading and (ii) to stop
selling or offering for sale Registrable Securities pursuant to the Registration Statement until
such Holder’s receipt of copies of a supplemented or amended Prospectus as contemplated by Section
3(i) hereof.
3. Registration Procedures.
In connection with the Company’s registration obligations hereunder, the Company shall:
(a) Not less than four Trading Days prior to the filing of a Registration Statement or any
related Prospectus or any amendment or supplement thereto, the Company shall furnish to each Holder
copies of the Prospectus, as proposed to be filed, which documents will be subject to the review of
such Holder. The Company shall not file a Registration Statement, any Prospectus or any amendments
or supplements thereto in which the “Selling Stockholder” section thereof differs from the
disclosure received from a Holder in its Selling Holder Questionnaire (as amended or supplemented).
The Company shall not file a Registration Statement, any Prospectus or any amendments or
supplements thereto in which it (i) characterizes any Holder as an underwriter, (ii) excludes a
particular Holder due to such Holder refusing to be named as an underwriter, or (iii) reduces the
number of Registrable Securities being registered on behalf of a Holder except pursuant to, in the
case of subsection (iii), the Commission Comments, without, in each case, such Holder’s express
written authorization. If Commission Comments require that a Holder be characterized as an
underwriter in a Registration Statement and the Holder refuses to be named, then all of the
Company’s obligations with respect to such Holder with respect to such Registration Statement shall
terminate; provided, that in such event all of the Holders’ rights with respect to demand
registration shall be reset.
(b) (i) Prepare and file with the Commission such amendments, including post-effective
amendments, to each Registration Statement and the Prospectus used in connection therewith as may
be necessary to keep such Registration Statement continuously effective as to the applicable
Registrable Securities for its Effectiveness Period and prepare and
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file with the Commission such additional Registration Statements in order to register for
resale under the Securities Act all of the Registrable Securities; (ii) cause the related
Prospectus to be amended or supplemented by any required Prospectus supplement, and as so
supplemented or amended to be filed pursuant to Rule 424; (iii) respond as promptly as reasonably
possible to any comments received from the Commission with respect to each Registration Statement
or any amendment thereto and, as promptly as reasonably possible, provide the Holders true and
complete copies of all correspondence from and to the Commission relating to such Registration
Statement that would not result in the disclosure to the Holders of material and non-public
information concerning the Company; and (iv) comply in all material respects with the provisions of
the Securities Act and the Exchange Act with respect to the Registration Statement(s) and the
disposition of all Registrable Securities covered by each Registration Statement.
(c) Notify the Holders as promptly as reasonably possible (and, in the case of (i)(A) below,
not less than three Trading Days prior to such filing and, in the case of (v) below, not less than
three Trading Days prior to the financial statements in any Registration Statement becoming
ineligible for inclusion therein) and (if requested by any such Person) confirm such notice in
writing no later than one Trading Day following the day (i)(A) when a Prospectus or any Prospectus
supplement or post-effective amendment to a Registration Statement is proposed to be filed; (B)
when the Commission notifies the Company whether there will be a “review” of such Registration
Statement and whenever the Commission comments in writing on such Registration Statement (the
Company shall provide true and complete copies thereof and all written responses thereto to each of
the Holders that pertain to the Holders as a Selling Stockholder or to the Plan of Distribution,
but not information which the Company believes would constitute material and non-public
information); and (C) with respect to each Registration Statement or any post-effective amendment,
when the same has become effective; (ii) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to a Registration Statement or
Prospectus or for additional information; (iii) of the issuance by the Commission of any stop order
suspending the effectiveness of a Registration Statement covering any or all of the Registrable
Securities or the initiation of any Proceedings for that purpose; (iv) of the receipt by the
Company of any notification with respect to the suspension of the qualification or exemption from
qualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation
or threatening of any Proceeding for such purpose; and (v) of the occurrence of any event or
passage of time that makes the financial statements included in a Registration Statement ineligible
for inclusion therein or any statement made in such Registration Statement or Prospectus or any
document incorporated or deemed to be incorporated therein by reference untrue in any material
respect or that requires any revisions to such Registration Statement, Prospectus or other
documents so that, in the case of such Registration Statement or the Prospectus, as the case may
be, it will not contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.
(d) Use its commercially reasonable efforts to avoid the issuance of, or, if issued, obtain
the withdrawal of (i) any order suspending the effectiveness of a Registration Statement, or (ii)
any suspension of the qualification (or exemption from qualification) of any of the Registrable
Securities for sale in any jurisdiction, at the earliest practicable moment.
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(e) Furnish to each Holder, without charge, at least one conformed copy of each Registration
Statement and each amendment thereto and all exhibits to the extent requested by such Person
(including those previously furnished) promptly after the filing of such documents with the
Commission.
(f) Promptly deliver to each Holder, without charge, as many copies of each Prospectus or
Prospectuses (including each form of Prospectus) and each amendment or supplement thereto as such
Persons may reasonably request. The Company hereby consents to the use of such Prospectus and each
amendment or supplement thereto by each of the selling Holders in connection with the offering and
sale of the Registrable Securities covered by such Prospectus and any amendment or supplement
thereto.
(g) Prior to any public offering of Registrable Securities, register or qualify such
Registrable Securities for offer and sale under the securities or Blue Sky laws of all
jurisdictions within the United States as any Holder may request, to keep each such registration or
qualification (or exemption therefrom) effective during the Effectiveness Period and to do any and
all other acts or things necessary or advisable to enable the disposition in such jurisdictions of
the Registrable Securities covered by the Registration Statement(s); provided,
however, that the Company shall not be required to qualify generally to do business in any
jurisdiction where it would not otherwise be required to qualify but for this paragraph or subject
itself to taxation in any such jurisdiction.
(h) Participate in presentations to investors and cooperate with the Holders to facilitate the
timely preparation and delivery of certificates representing Registrable Securities to be delivered
to a transferee pursuant to the Registration Statement(s), which certificates shall be free of all
restrictive legends, and to enable such Registrable Securities to be in such denominations and
registered in such names as any such Holders may request.
(i) Upon the occurrence of any event contemplated by Section 3(c)(v), as promptly as
reasonably possible, prepare a supplement or amendment, including a post-effective amendment, to
the affected Registration Statements or a supplement to the related Prospectus or any document
incorporated or deemed to be incorporated therein by reference, and file any other required
document so that, as thereafter delivered, no Registration Statement nor any Prospectus will
contain an untrue statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
(j) The Holder(s) shall have the right to engage and select an underwriter for sales pursuant
to this agreement. The Company shall cooperate with underwriter(s), including by allowing the
underwriter(s) to perform a customary due diligence investigation (including with respect to the
Company’s outside auditor), signing and observing a customary underwriter(s) agreement, delivering
to such underwriter customary legal opinions from Company counsel and “comfort” letters from the
Company’s independent auditors, and participating in investor and “roadshow” presentations as
requested by the underwriter(s).
4. Registration Expenses. All fees and expenses incident to the performance of or
compliance with this Agreement by the Company shall be borne by the Company whether or not
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any Registrable Securities are sold pursuant to a Registration Statement. The fees and
expenses referred to in the foregoing sentence shall include, without limitation, (i) all
registration and filing fees (including, without limitation, fees and expenses (A) with respect to
filings required to be made with any Trading Market on which the Shares are then listed for
trading, and (B) in compliance with applicable state securities or Blue Sky laws), (ii) printing
expenses (including, without limitation, expenses of printing certificates for Registrable
Securities and of printing Prospectuses if the printing of Prospectuses is reasonably requested by
a Holder), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements of counsel
for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance,
and (vi) fees and expenses of all other Persons retained by the Company in connection with the
consummation of the transactions contemplated by this Agreement, and (viii) the reasonable fees and
expenses of one counsel for the Holders and one local counsel as necessary. In addition, the
Company shall be responsible for all of its internal expenses incurred in connection with the
consummation of the transactions contemplated by this Agreement (including, without limitation, all
salaries and expenses of its officers and employees performing legal or accounting duties), the
expense of any annual audit and the fees and expenses incurred in connection with the listing of
the Registrable Securities on any securities exchange as required hereunder.
5. Indemnification.
(a) Indemnification by the Company. The Company shall, notwithstanding any
termination of this Agreement, indemnify and hold harmless each Holder, the officers, directors,
agents, representatives, investment advisors, consultants, partners, principals, managers, members
and employees of each of them, each Person who controls any such Holder (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors,
agents and employees of each such controlling Person, to the fullest extent permitted by applicable
law, from and against any and all losses, claims, damages, liabilities, costs (including, without
limitation, reasonable costs of preparation and reasonable attorneys’ fees) and expenses
(collectively, “Losses”), as incurred, arising out of or relating to any untrue or alleged untrue
statement of a material fact contained in any Registration Statement, any Prospectus or any form of
Prospectus or in any amendment or supplement thereto or in any preliminary Prospectus, or arising
out of or relating to any omission or alleged omission of a material fact required to be stated
therein or necessary to make the statements therein (in the case of any Prospectus or form of
Prospectus or supplement thereto, in light of the circumstances under which they were made) not
misleading, except to the extent, but only to the extent, that (1) such untrue statements or
omissions are based solely upon information regarding a Holder furnished in writing to the Company
by a Holder expressly for use therein, or to the extent that such information relates to a Holder
or a Holder’s proposed method of distribution of Registrable Securities and was reviewed and
expressly approved in writing by a Holder expressly for use in the Registration Statement, such
Prospectus or such form of Prospectus or in any amendment or supplement thereto (it being
understood that each Holder has approved Annex B hereto for this purpose) or (2) in the case of an
occurrence of an event of the type specified in Section 3(c)(ii)-(v), the use by such Holder of an
outdated or defective Prospectus after the Company has notified such Holder in writing that the
Prospectus is outdated or defective and prior to the receipt by such Holder of an Advice or an
amended or supplemented Prospectus, but only if and to the extent that following the receipt of the
Advice or the amended or supplemented Prospectus the misstatement or omission giving rise to such
Loss would have been corrected. The Company
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shall notify the Holders promptly of the institution, threat or assertion of any Proceeding of
which the Company is aware in connection with the transactions contemplated by this Agreement.
(b) Indemnification by Holders. Each Holder shall, severally and not jointly,
indemnify and hold harmless the Company, the other Holders, each of their directors, officers,
agents and employees, each Person who controls the Company or another Holder (within the meaning of
Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers,
agents or employees of such controlling Persons, to the fullest extent permitted by applicable law,
from and against all Losses, as incurred, arising solely out of or based solely upon: (x) such
Holder’s failure to comply with the Prospectus delivery requirements of the Securities Act or (y)
any untrue statement of a material fact contained in any Registration Statement, any Prospectus, or
any form of Prospectus, or in any amendment or supplement thereto, or arising solely out of or
based solely upon any omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading to the extent, but only to the extent that, (1) such
untrue statements or omissions are based solely upon information regarding such Holder furnished in
writing to the Company by such Holder expressly for use therein, or to the extent that such
information relates to such Holder or such Holder’s proposed method of distribution of Registrable
Securities and was reviewed and expressly approved in writing by such Holder expressly for use in
the Registration Statement (it being understood that the Holder has approved Annex B hereto for
this purpose), such Prospectus or such form of Prospectus or in any amendment or supplement thereto
or (2) in the case of an occurrence of an event of the type specified in Section 3(c)(ii)-(v), the
use by such Holder of an outdated or defective Prospectus after the Company has notified such
Holder in writing that the Prospectus is outdated or defective and prior to the receipt by such
Holder of an Advice or an amended or supplemented Prospectus, but only if and to the extent that
following the receipt of the Advice or the amended or supplemented Prospectus the misstatement or
omission giving rise to such Loss would have been corrected. In no event shall the liability of
any selling Holder hereunder be greater in amount than the dollar amount of the net proceeds
received by such Holder upon the sale of the Registrable Securities giving rise to such
indemnification obligation.
(c) Conduct of Indemnification Proceedings. If any Proceeding shall be brought or
asserted against any Person entitled to indemnity hereunder (an “Indemnified Party”), such
Indemnified Party shall promptly notify the Person from whom indemnity is sought (the “Indemnifying
Party”) in writing, and the Indemnifying Party shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees
and expenses incurred in connection with defense thereof; provided, that the failure of any
Indemnified Party to give such notice shall not relieve the Indemnifying Party of its obligations
or liabilities pursuant to this Agreement, except (and only) to the extent that it shall be finally
determined by a court of competent jurisdiction (which determination is not subject to appeal or
further review) that such failure shall have proximately and materially adversely prejudiced the
Indemnifying Party.
An Indemnified Party shall have the right to employ separate counsel in any such Proceeding
and to participate in the defense thereof, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in
writing to pay such fees and expenses; (2) the Indemnifying Party shall have failed
11
promptly to assume the defense of such Proceeding and to employ counsel reasonably
satisfactory to such Indemnified Party in any such Proceeding; or (3) the named parties to any such
Proceeding (including any impleaded parties) include both such Indemnified Party and the
Indemnifying Party, and such Indemnified Party shall have been advised by counsel that a conflict
of interest is likely to exist if the same counsel were to represent such Indemnified Party and the
Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in
writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the
Indemnifying Party shall not have the right to assume the defense thereof and such counsel shall be
at the expense of the Indemnifying Party). The Indemnifying Party shall not be liable for any
settlement of any such Proceeding effected without its written consent, which consent shall not be
unreasonably withheld. No Indemnifying Party shall, without the prior written consent of the
Indemnified Party, effect any settlement of any pending Proceeding in respect of which any
Indemnified Party is a party, unless such settlement includes an unconditional release of such
Indemnified Party from all liability on claims that are the subject matter of such Proceeding.
All fees and expenses of the Indemnified Party (including reasonable fees and expenses to the
extent incurred in connection with investigating or preparing to defend such Proceeding in a manner
not inconsistent with this Section) shall be paid to the Indemnified Party, as incurred, within
twenty Trading Days of written notice thereof to the Indemnifying Party (regardless of whether it
is ultimately determined that an Indemnified Party is not entitled to indemnification hereunder;
provided, that the Indemnifying Party may require such Indemnified Party to undertake to
reimburse all such fees and expenses to the extent it is finally judicially determined that such
Indemnified Party is not entitled to indemnification hereunder).
(d) Contribution. If a claim for indemnification under Section 5(a) or 5(b) is
unavailable to an Indemnified Party (by reason of public policy or otherwise), then each
Indemnifying Party, in lieu of indemnifying such Indemnified Party, shall contribute to the amount
paid or payable by such Indemnified Party as a result of such Losses, in such proportion as is
appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in
connection with the actions, statements or omissions that resulted in such Losses as well as any
other relevant equitable considerations. The relative fault of such Indemnifying Party and
Indemnified Party shall be determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact or omission or
alleged omission of a material fact, has been taken or made by, or relates to information supplied
by, such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such action, statement or omission.
The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 5(c), any reasonable attorneys’ or other reasonable fees or
expenses incurred by such party in connection with any Proceeding to the extent such party would
have been indemnified for such fees or expenses if the indemnification provided for in this Section
was available to such party in accordance with its terms.
The parties hereto agree that it would not be just and equitable if contribution pursuant to
this Section 5(d) were determined by pro rata allocation or by any other method of allocation that
does not take into account the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 5(d), no
12
Holder shall be required to contribute, in the aggregate, any amount in excess of the amount
by which the proceeds actually received by such Holder from the sale of the Registrable Securities
subject to the Proceeding exceeds the amount of any damages that such Holder has otherwise been
required to pay by reason of such untrue or alleged untrue statement or omission or alleged
omission.
The indemnity and contribution agreements contained in this Section are in addition to any
liability that the Indemnifying Parties may have to the Indemnified Parties.
6. Miscellaneous.
(a) No Piggyback on Registrations. Other than as required by agreements entered into
before or on the date hereof, neither the Company nor any of its security holders (other than the
Holders in such capacity pursuant hereto) may include securities of the Company in a Registration
Statement other than the Registrable Securities.
(b) Compliance. Each Holder covenants and agrees that it will comply with the
Prospectus delivery requirements of the Securities Act as applicable to it in connection with sales
of Registrable Securities pursuant to the Registration Statement.
(c) Piggy-Back Registrations. If at any time the Company shall determine to prepare
and file with the Commission a registration statement relating to an offering for its own account
or the account of others under the Securities Act of any of its equity securities, other than on
Form S-4 or Form S-8 (each as promulgated under the Securities Act) or their then equivalents
relating to equity securities to be issued solely in connection with any acquisition of any entity
or business or equity securities issuable in connection with stock option or other employee benefit
plans or relating to any offering pursuant to the Registration Rights Agreement dated November 23,
2010, entered into by and among the Company and the holders of the Company’s Series A Convertible
Preferred Stock or the Registration Rights Agreement dated November 23, 2010, entered into by and
between the Company and Xxxxx Xxxxx Xxxxxxx, then the Company shall send to each Holder written
notice of such determination and, if within fifteen calendar days after receipt of such notice, any
such Holder shall so request in writing, the Company shall, unless prohibited or restricted by any
agreement governing the Company’s obligations with respect to such registration statement, include
in such registration statement all or any part of such Registrable Securities such Holder requests
to be registered, subject to underwriter cutbacks pursuant to which the number of shares that may
be included in the underwriting shall be allocated, first, to the Company; second, to persons
participating in such registration pursuant to demand rights on a pro rata basis based on the
number of shares held by such persons; and, third to the Holders on a pro rata basis based on the
total number of Registrable Securities held by the Holders. The Company shall have the right to
terminate or withdraw any registration initiated by it under this Section 6(d) prior to the
effectiveness of such registration whether or not any Holder has elected to include securities in
such registration.
(d) Blackout Periods. Upon receipt of any notice from the Company of the happening of
any event of the kind described in Section 3(c)(iv) or 3(c)(v) or of any event as a result of which
the Prospectus included in the Registration Statement contains an untrue statement of a material
fact or omits any material fact necessary to make the statements therein
13
not misleading, the Company shall promptly notify each Holder (a “Suspension Notice”) and each
Holder will forthwith discontinue disposition of Registrable Securities pursuant to the
Registration Statement for a reasonable length of time not to exceed 30 days until such Holder is
advised in writing by Company that the use of the Prospectus may be resumed and is furnished with a
supplemented or amended Prospectus (a “Blackout Period”); provided, however, that
such postponement of sales of Registrable Securities by such Holder shall not exceed ninety (90)
days in the aggregate in any 12 month period. In any event, the Company shall not be entitled to
deliver more than a total of three (3) Suspension Notices in any 12 month period. A Blackout
Period that does not violate any of the restrictions on Blackout Periods set forth herein is
referred to in this Agreement as an “Allowable Blackout Period.” In no event shall any such notice
under this Section 6(e) contain any information which would constitute material, nonpublic
information regarding the Company or any of its subsidiaries.
(e) Discontinued Disposition. Each Holder agrees by its acquisition of Registrable
Securities that, upon receipt of a notice from the Company of the occurrence of any event of the
kind described in Section 3(c), such Holder will forthwith discontinue disposition of such
Registrable Securities under a Registration Statement until such Holder’s receipt of the copies of
the supplemented Prospectus and/or amended Registration Statement or until it is notified in an
Advice by the Company that the use of the applicable Prospectus may be resumed, and, in either
case, has received copies of any additional or supplemental filings that are incorporated or deemed
to be incorporated by reference in such Prospectus or Registration Statement. The Company may
provide appropriate stop orders to enforce the provisions of this paragraph.
(f) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this Section 6(g), may not be amended, modified or supplemented, and waivers or
consents to departures from the provisions hereof may not be given, unless the same shall be in
writing and signed by the Company and Holders holding a majority of the then outstanding
Registrable Securities.
(g) Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated confirmation of successful
transmission) at the facsimile number specified in this Section prior to 6:30 p.m. (New York City
time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in this Section on a day
that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the
Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier
service, or (d) upon actual receipt by the party to whom such notice is required to be given. The
address for such notices and communications shall be as follows:
If to the Company:
|
NYTEX Energy Holdings, Inc. | |
| 00000 Xxxxx Xxxxx, Xxxxx 0000 | ||
| Xxxxxx, XX 00000 | ||
| Attn: Xx. Xxxxxxx Xxxxx | ||
| Telephone: (000) 000-0000 | ||
| Facsimile: (000) 000-0000 |
14
With a copy to:
|
Xxxxxxxxxxx & Price, LLP | |
| 000 Xxxx Xxxxxx, Xxxxx 0000 | ||
| Xxxxxx, XX 00000 | ||
| Attn.: Xx. Xxxxx Xxxxxxx Telephone: (000) 000-0000 |
||
| Facsimile: (000) 000-0000 | ||
If to a Holder: To the address set forth under such Holder’s name on the signature
pages hereto with a copy to such Person identified on such signature page.
|
||
| If to any other Person who is then the registered Holder: To the address of such Holder as it appears in the stock transfer books of the Company or such other address as may be designated in writing hereafter, in the same manner, by such Person. | ||
(h) Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of each of the parties and shall inure to the
benefit of each Holder. The Company may not assign its rights or obligations hereunder without the
prior written consent of each Holder. Each Holder may assign their respective rights hereunder in
the manner and to the Persons as permitted under the that certain Preferred Stock and Warrant
Purchase Agreement, dated as of November 23, 2010, by and among the Company, NYTEX FDF Acquisition,
Inc. and WayPoint Nytex, LLC.
(i) Execution and Counterparts. This Agreement may be executed in any number of
counterparts, each of which when so executed shall be deemed to be an original and, all of which
taken together shall constitute one and the same Agreement. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid binding obligation of the
party executing (or on whose behalf such signature is executed) the same with the same force and
effect as if such facsimile signature were the original thereof.
(j) Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof (except as set forth in section 5-1401 of the New York General Obligations Law). Each
party agrees that all Proceedings concerning the interpretations, enforcement and defense of the
transactions contemplated by this Agreement (whether brought against a party hereto or its
respective Affiliates, employees or agents) will be commenced in the New York Courts. Each party
hereto hereby irrevocably submits to the exclusive jurisdiction of the New York Courts for the
adjudication of any dispute hereunder or in connection herewith or with any transaction
contemplated hereby or discussed herein, and hereby irrevocably waives, and agrees not to assert in
any Proceeding, any claim that it is not personally subject to the
15
jurisdiction of any New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. Each party hereto
hereby irrevocably waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any Proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby. If either party shall commence a Proceeding to enforce any provisions of this
Agreement, then the prevailing party in such Proceeding shall be reimbursed by the other party for
its attorney’s fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such Proceeding.
(k) Cumulative Remedies. The remedies provided herein are cumulative and not
exclusive of any remedies provided by law.
(l) Severability. If any term, provision, covenant or restriction of this Agreement is
held by a court of competent jurisdiction to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in
full force and effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their reasonable efforts to find and employ an alternative means to achieve the
same or substantially the same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the parties that they
would have executed the remaining terms, provisions, covenants and restrictions without including
any of such that may be hereafter declared invalid, illegal, void or unenforceable.
(m) Headings. The headings in this Agreement are for convenience of reference only
and shall not limit or otherwise affect the meaning hereof.
(n) Independent Nature of Holders’ Obligations and Rights. The obligations of each
Holder under this Agreement are several and not joint with the obligations of each other Holder,
and no Holder shall be responsible in any way for the performance of the obligations of any other
Holder under this Agreement. Nothing contained herein and no action taken by any Holder pursuant
thereto, shall be deemed to constitute the Holders as a partnership, an association, a joint
venture or any other kind of entity, or create a presumption that the Holders are in any way acting
in concert or as a group with respect to such obligations or the transactions contemplated by this
Agreement. Each Holder acknowledges that no other Holder will be acting as agent of such Holder in
enforcing its rights under this Agreement. Each Holder shall be entitled to independently protect
and enforce its rights, including without limitation the rights arising out of this Agreement, and
it shall not be necessary for any other Holder to be joined as an additional party in any
Proceeding for such purpose.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES TO FOLLOW]
16
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| NYTEX ENERGY HOLDINGS, INC. |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK SIGNATURE PAGES OF HOLDERS TO FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Registration Rights Agreement as of the
date first written above.
| HOLDER WAYPOINT NYTEX, LLC |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| ADDRESS FOR NOTICE c/o WayPoint Capital Partners, LLC 000 Xxxxxxxx Xxxxx Xxx, Xxxxx X000 Xxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Attn: Xx. Xxxxxx X. Xxxxxxxxx With a copy to Winston & Xxxxxx LLP 000 Xxxx Xxxxxx Xxx Xxxx, XX 00000 Telephone: (000) 000-0000 Facsimile: (000) 000-0000 Attention: Xxxxxxx X. Xxxxxx, Esq. |
||||
Annex A
SCHEDULE OF HOLDERS
| Holders | Address and Facsimile Number | |
WayPoint Nytex, LLC
|
c/o WayPoint Capital Partners, LLC | |
| 000 Xxxxxxxx Xxxxx Xxxxxx, Xxxxx X000, Xxx, XX 00000 |
||
| Attn: Xx. Xxxxxx X. Xxxxxxxxx | ||
| Fax: (000) 000-0000 |
Annex B
Plan of Distribution
The Selling Stockholders and any of their pledgees, donees, transferees, assignees and
successors-in-interest may, from time to time, sell any or all of their shares on any stock
exchange, market or trading facility on which the shares are traded or quoted or in private
transactions. These sales may be at fixed or negotiated prices. The Selling Stockholders may use
any one or more of the following methods when selling shares:
| • | ordinary brokerage transactions and transactions in which the broker-dealer solicits the Selling Stockholders; |
| • | block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction; |
| • | purchases by a broker-dealer as principal and resale by the broker-dealer for its account; |
| • | an exchange distribution in accordance with the rules of the applicable exchange; |
| • | privately negotiated transactions; |
| • | to cover short sales made after the date that this Registration Statement is declared effective by the Commission; |
| • | broker-dealers may agree with the Selling Stockholders to sell a specified number of such shares at a stipulated price per share; |
| • | underwritten transactions; |
| • | a combination of any such methods of sale; and |
| • | any other method permitted pursuant to applicable law. |
The Selling Stockholders may also sell shares under Rule 144 under the Securities Act, if
available, rather than under this Prospectus.
Broker-dealers engaged by the Selling Stockholders may arrange for other brokers-dealers to
participate in sales. Broker-dealers may receive commissions or discounts from the Selling
Stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the
purchaser) in amounts to be negotiated. The Selling Stockholders do not expect these commissions
and discounts to exceed what is customary in the types of transactions involved.
The Selling Stockholders may from time to time pledge or grant a security interest in some or
all of the Shares owned by them and, if they default in the performance of their secured
obligations, the pledgees or secured parties may offer and sell Shares from time to time under this
Prospectus, or under an amendment to this Prospectus under Rule 424(b)(3) or other applicable
provision of the Securities Act of 1933 amending the list of selling stockholders to include the
pledgee, transferee or other successors in interest as selling stockholders under this Prospectus.
Upon the Company being notified in writing by a Selling Stockholder that any material
arrangement has been entered into with a broker-dealer for the sale of the Shares through a block
trade, special offering, exchange distribution or secondary distribution or a purchase by a broker
or dealer, a supplement to this Prospectus will be filed, if required, pursuant to Rule 424(b)
under the Securities Act, disclosing (i) the name of each such Selling Stockholder and of the
participating broker-dealer(s), (ii) the number of shares involved, (iii) the price at which such
the Shares were sold, (iv) the commissions paid or discounts or concessions allowed to such
broker-dealer(s), where applicable, (v) that such broker-dealer(s) did not conduct any
investigation to verify the information set out or incorporated by reference in this Prospectus,
and (vi) other facts material to the transaction. In addition, upon the Company being notified in
writing by a Selling Stockholder that a donee or pledgee intends to sell more than 500 Shares, a
supplement to this Prospectus will be filed if then required in accordance with applicable
securities law.
The Selling Stockholders also may transfer the Shares in other circumstances, in which case
the transferees, pledgees or other successors in interest will be the selling beneficial owners for
purposes of this Prospectus.
The Selling Stockholders and any broker-dealers or agents that are involved in selling the
shares may be deemed to be “underwriters” within the meaning of the Securities Act in connection
with such sales. In such event, any commissions received by such broker-dealers or agents and any
profit on the resale of the shares purchased by them may be deemed to be underwriting commissions
or discounts under the Securities Act. Discounts, concessions, commissions and similar selling
expenses, if any, that can be attributed to the sale of Securities will be paid by the Selling
Stockholder and/or the purchasers. Each Selling Stockholder has represented and warranted to the
Company that it acquired the securities subject to this Registration Statement in the ordinary
course of such Selling Stockholder’s business and, at the time of its purchase of such securities
such Selling Stockholder had no agreements or understandings, directly or indirectly, with any
person to distribute any such securities.
The Company has advised each Selling Stockholder that it is the view of the Commission that it
may not use shares registered on this Registration Statement to cover short sales of the shares
made prior to the date on which this Registration Statement shall have been declared effective by
the Commission. If a Selling Stockholder uses this Prospectus for any sale of the shares, it will
be subject to the Prospectus delivery requirements of the Securities Act. The Selling Stockholders
will be responsible to comply with the applicable provisions of the Securities Act and Exchange
Act, and the rules and regulations thereunder promulgated, including, without limitation,
Regulation M, as applicable to such Selling Stockholders in connection with resales of their
respective shares under this Registration Statement.
The Company is required to pay all fees and expenses incident to the registration of the
shares, but the Company will not receive any proceeds from the sale of the Shares. The Company has
agreed to indemnify [the Underwriters and] the Selling Stockholders against certain losses, claims,
damages and liabilities, including liabilities under the Securities Act.
[Revisions may be required for underwritten offerings.]
Annex C
The undersigned beneficial owner of Common Stock (the “Common Stock”), of NYTEX ENERGY
HOLDINGS, INC., a Delaware corporation (the “Company”), understands that the Company has filed
or intends to file with the Securities and Exchange Commission (the “Commission”) a Registration
Statement for the registration and resale of the Registrable Securities, in accordance with the
terms of the Registration Rights Agreement, dated as of November 23, 2010 (the “Registration Rights
Agreement”), among the Company and the Holder(s) named therein. A copy of the Registration Rights
Agreement is available from the Company upon request at the address set forth below. All
capitalized terms used and not otherwise defined herein shall have the meanings ascribed thereto in
the Registration Rights Agreement.
The undersigned hereby provides the following information to the Company and represents and
warrants that such information is accurate:
QUESTIONNAIRE
1. Name.
| (a) | Full Legal Name of Selling Securityholder | ||
| (b) | Full Legal Name of Registered Holder (if not the same as (a) above) through which Registrable Securities Listed in Item 3 below are held: | ||
| (c) | Full Legal Name of Natural Control Person (which means a natural person who directly or indirectly alone or with others has power to vote or dispose of the securities covered by the questionnaire): | ||
2. Address for Notices to Selling Securityholder:
| Telephone: | ||
| Fax: | ||
| Contact Person: | ||
3. Beneficial Ownership of Registrable Securities:
| Type and Principal Amount of Registrable Securities beneficially owned: | |||
4. Broker-Dealer Status:
| (a) | Are you a broker-dealer? |
Yes ¨ No ¨
| Note: | If yes, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
| (b) | Are you an affiliate of a broker-dealer? |
Yes ¨ No ¨
| (c) | If you are an affiliate of a broker-dealer, do you certify that you bought the Registrable Securities in the ordinary course of business, and at the time of the purchase of the Registrable Securities to be resold, you had no agreements or understandings, directly or indirectly, with any person to distribute the Registrable Securities? |
Yes ¨ No ¨
| Note: | If no, the Commission’s staff has indicated that you should be identified as an underwriter in the Registration Statement. |
5. Beneficial Ownership of Other Securities of the Company Owned by the Selling Securityholder.
Except as set forth below in this Item 5, the undersigned is not the beneficial or
registered owner of any securities of the Company other than the Registrable Securities
listed above in Item 3.
| Type and Amount of Other Securities beneficially owned by the Selling Securityholder: | |||
6. Relationships with the Company:
Except as set forth below, neither the undersigned nor any of its affiliates, officers,
directors or principal equity holders (owners of 5% of more of the equity securities of the
undersigned) has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
| State any exceptions here: | |
7. The Company has advised each Selling Stockholder that it is the view of the Commission that it
may not use shares registered on the Registration Statement to cover short sales of Common Stock
made prior to the date on which the Registration Statement is declared effective by the Commission,
in accordance with 1997 Securities and Exchange Commission Manual of Publicly Available Telephone
Interpretations Section A.65. If a Selling Stockholder uses the Prospectus for any sale of the
Common Stock, it will be subject to the Prospectus delivery requirements of the Securities Act.
The Selling Stockholders will be responsible to comply with the applicable provisions of the
Securities Act and Exchange Act, and the rules and regulations thereunder promulgated, including,
without limitation, Regulation M, as applicable to such Selling Stockholders in connection with
resales of their respective shares under the Registration Statement.
The undersigned agrees to promptly notify the Company of any inaccuracies or changes in the
information provided herein that may occur subsequent to the date hereof and prior to the Effective
Date for the Registration Statement.
By signing below, the undersigned consents to the disclosure of the information contained herein in
its answers to Items 1 through 6 and the inclusion of such information in the Registration
Statement and the related Prospectus. The undersigned understands that such information will be
relied upon by the Company in connection with the preparation or amendment of the Registration
Statement and the related Prospectus.
IN WITNESS WHEREOF the undersigned, by authority duly given, has caused this Notice and
Questionnaire to be executed and delivered either in person or by its duly authorized agent.
Dated:
|
Beneficial Owner: | |||||
| By: | ||||
| Name: | ||||
| Title: | ||||
PLEASE FAX A COPY OF THE COMPLETED AND EXECUTED NOTICE AND QUESTIONNAIRE, AND RETURN THE ORIGINAL
BY OVERNIGHT MAIL, TO:
| NYTEX Energy Holdings, Inc. 00000 Xxxxx Xxxxx, Xxxxx 0000 Xxxxxx, XX 00000 Attn: Xx. Xxxxxxx Xxxxx Facsimile: (000) 000-0000 |
||||
