WHEREAS, (a) the Boards of Directors of each of PubCo, New PubCo and Merger Sub
Inc. have approved this Agreement and the Reorganization, subject to the terms and conditions set forth in this Agreement and (b) PubCo, in its capacity as the managing member of OpCo, has approved this Agreement and the Reorganization, and
(c) New PubCo, in its capacity as the sole member of Merger Sub LLC, has approved this Agreement and the Reorganization; and
WHEREAS, the PubCo Board expects to receive approval of the Reorganization by written consent (the Stockholder Written
Consent) from PubCo stockholders sufficient for the Required Stockholder Vote (as defined herein) in lieu of a meeting pursuant to Section 228 of the Delaware General Corporation Law (the DGCL).
NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
Section 1.1. Definitions. In addition to terms
defined in the body of this Agreement, the following capitalized terms have the following meanings:
ASMC means Atlas Sand Management Company, LLC, a Texas limited liability company.
ASMC II means Atlas Sand Management Company II, LLC, a Delaware limited liability company.
DLLCA means the Delaware Limited Liability Company Act.
Exchange Act means the Securities Exchange Act of 1934, as amended.
Existing New PubCo Bylaws means those certain Bylaws of New PubCo, adopted June 28, 2023, as amended,
restated or otherwise modified prior to the Effective Time.
Existing New PubCo Charter means that
certain Certificate of Incorporation of New PubCo, dated as of June 28, 2023, as amended, restated or otherwise modified prior to the Effective Time.
Existing OpCo LLC Agreement means that certain Amended and Restated Limited Liability Company Agreement of
OpCo, dated as of March 8, 2023, as amended, restated or otherwise modified prior to the Effective Time.
Existing PubCo Bylaws means those certain Amended and Restated Bylaws of PubCo, adopted March 8, 2023,
as amended, restated or otherwise modified prior to the Effective Time.
Existing PubCo Charter means
that certain that certain Amended and Restated Certificate of Incorporation of PubCo, dated as of March 8, 2023, as amended, restated or otherwise modified prior to the Effective Time.
Governmental Authority means the United States of America and any foreign country, any state, commonwealth,
territory or possession thereof and any political subdivision or quasi-governmental authority of any of the same, including any court, tribunal, department, commission, board, bureau, agency, county, municipality, province, parish or other
instrumentality of any of the foregoing.
Holdings II means Atlas Sand Holdings II, LLC, a Delaware
limited liability company.
Law means any applicable federal, state, provincial, municipal, local or
foreign statute, law, treaty, ordinance, regulation, rule, code, order or rule of common law.
Legacy
Owners refer to holders of membership interests in one or more of Holdings, Holdings II, ASMC and ASMC II.
I-2