Exhibit 10.1
AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT
This AMENDED AND RESTATED STOCKHOLDERS’ AGREEMENT (this “Agreement”), dated as of October 2, 2023, is entered into by and among Atlas Energy Solutions Inc. (f/k/a New Atlas HoldCo Inc.), a Delaware corporation (the “Company”), AESI Holdings Inc. (f/k/a Atlas Energy Solutions Inc.), a Delaware corporation (“Old Atlas”), and the Principal Stockholders (as defined herein).
WHEREAS, Old Atlas and the Principal Stockholders previously entered into that certain Stockholders’ Agreement, dated as of March 8, 2023 (the “Existing Stockholders’ Agreement”), to set forth certain understandings among themselves;
WHEREAS, on July 31, 2023, the Company, Old Atlas, Atlas Sand Operating, LLC, a Delaware limited liability company and a direct, majority owned subsidiary of Old Atlas, AESI Merger Sub Inc., a Delaware corporation and a direct, wholly owned subsidiary of the Company (“Pubco Merger Sub”), Atlas Operating Merger Sub, LLC, a Delaware limited liability company and a direct, wholly owned subsidiary of the Company, and Atlas Sand Holdings, LLC, a Delaware limited liability company, entered into that certain Master Reorganization Agreement, pursuant to which, among other things, Pubco Merger Sub will be merged with and into Old Atlas and Old Atlas will become a wholly owned subsidiary of the Company (the “Reorganization”);
WHEREAS, after the closing of the Reorganization, the Principal Stockholders will own shares of the Company’s common stock, par value $0.01 per share (the “Common Stock”);and
WHEREAS, in connection with the Reorganization, Old Atlas and the Principal Stockholders desire to amend and restate the Existing Stockholders’ Agreement, pursuant to which the Company shall assume the obligations of Old Atlas described therein, as set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:
DEFINITIONS
“Affiliate” means, with respect to any specified Person, a Person that directly or indirectly Controls or is Controlled by, or is under common Control with, such specified Person; provided that, for purposes of this Agreement, none of the Principal Stockholders shall be deemed to be Affiliates of the Company and its Affiliates. For purposes of this Agreement, no party to this Agreement shall be deemed to be an Affiliate of another party to this Agreement solely by reason of the execution and delivery of this Agreement.
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“Beneficial Owner” of a security is a Person who directly or indirectly, through any contract, arrangement, understanding, relationship or otherwise, has or shares (a) voting power, which includes the power to vote, or to direct the voting of, such security and/or (b) investment power, which includes the power to dispose of, or to direct the disposition of, such security. The terms “Beneficially Own” and “Beneficial Ownership” shall have correlative meanings. For the avoidance of doubt, for purposes of this Agreement, each Principal Stockholder is deemed to Beneficially Own the shares of Common Stock owned by it and no party hereto is deemed to Beneficially Own shares of Common Stock of another party hereto, notwithstanding the fact that such shares are subject to this Agreement.
“Board” means the Board of Directors of the Company.
“Brigham Director” means any such individual whom the Brigham Representative shall nominate or designate pursuant to Section 2.1 and who is thereafter appointed or elected to the Board to serve as a director.
“Brigham Representative” means Ben M. Brigham; provided that in accordance with Section 2.5 in the event of Ben M. Brigham’s Disability, it shall mean (i) Anne Brigham; (ii) upon each of Ben M. Brigham’s and Anne Brigham’s Disability, it shall mean David Brigham; and (iii) upon each of Ben M. Brigham’s, Anne Brigham’s and David Brigham’s Disability, it shall mean Vince Brigham.
“Bylaws” means the bylaws of the Company, as may be amended and restated from time to time.
“Certificate of Incorporation” means the certificate of incorporation of the Company, as may be amended and restated from time to time.
“Common Stock” has the meaning given to such term in the recitals hereto.
“Control” (including the terms “Controls,” “Controlled by” and “under common Control with”) means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise.
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“Disability” means the Brigham Representative’s inability to (a) act prudently with respect to matters concerning the corporate governance of the Company, including in the exercise of the Brigham Representative’s approval and designation rights under this Agreement, and (b) engage reasonably in discussions with other Principal Stockholders regarding the composition of the Board or any proposed action subject to the Brigham Representative’s approval under Section 2.4, in each case, as a result of a mental or physical impairment that is continuing, or can reasonably be expected to continue, for (i) 90 consecutive days or (ii) any 180 days, whether or not consecutive (or for any longer period as may be required by applicable law), in any 12-month period. A determination of whether a Disability exists shall be made following the delivery of a written notice by any Principal Stockholder to the other parties hereto and the Board including a statement that such Principal Stockholder in good faith believes that a question exists as to whether the Brigham Representative has a Disability and a request that a determination be made thereon, by mutual agreement of (A) an independent physician selected by the Brigham Representative (or a personal representative designated by the Brigham Representative) and (B) an independent physician selected by a majority of the directors then serving on Board that qualify as “independent” for purposes of the Exchange Act and rules and regulations of the principal exchange on which the Common Stock is then listed; provided, however, that, if the opinion of the Brigham Representative’s physician and the Board’s physician conflict, such physicians shall together agree upon and select a third independent physician, whose opinion shall be binding. In the event a question arises as to whether the Brigham Representative has a Disability, the Brigham Representative shall reasonably cooperate in all respects with the other Principal Stockholders and the Board in order to facilitate a determination thereon for purposes of this Agreement, including (x) submitting to examinations by any medical doctors or other health care specialists, (y) authorizing the disclosure and release of all supporting medical records to any such medical doctors or other specialists and (z) authorizing any such medical doctors or other specialists to discuss matters concerning the Brigham Representative’s physical and mental condition with the Board and the other Principal Stockholders.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Existing Stockholders’ Agreement” has the meaning given to such term in the recitals hereto.
“Necessary Action” means, with respect to a specified result, all actions (to the extent such actions are permitted by applicable law and within such party’s control) necessary to cause such result, including (i) voting or providing a written consent or proxy with respect to shares of Common Stock, (ii) causing the adoption of stockholders’ resolutions and amendments to the organizational documents of the Company, (iii) executing agreements and instruments and (iv) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such result.
“Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, any court, administrative agency, regulatory body, commission or other governmental authority, board, bureau or instrumentality, domestic or foreign and any subdivision thereof or other entity, and also includes any managed investment account.
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“Principal Stockholder” means the stockholders identified on the signature pages hereto or any other Persons signatory hereto from time to time, including in accordance with Section 4.9 hereof. For the avoidance of doubt, the Brigham Representative, other than Ben M. Brigham, shall not be a Principal Stockholder as defined in this Agreement.
“Reorganization” has the meaning given to such term in the recitals hereto.
“Transfer” means, directly or indirectly (whether by merger, operation of law or otherwise), to sell, transfer, assign, pledge, hypothecate or otherwise dispose of or encumber any direct or indirect economic, voting or other rights in or to any Common Stock, including by means of (i) the Transfer of an interest in a Person that directly or indirectly holds such Common Stock or (ii) a hedge, swap or other derivative. “Transferred” and “Transferring” shall have correlative meanings.
GOVERNANCE MATTERS
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TERMINATION
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MISCELLANEOUS
If to the Company, to:
Atlas Energy Solutions Inc.
5918 W. Courtyard Drive, Suite 500
Austin, Texas 78730
Attention: Dathan Voelter
E-mail: [***]
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[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date first written above.
COMPANY
ATLAS ENERGY SOLUTIONS INC.
By: /s/ John Turner
Name: John Turner
Title: President and Chief Financial Officer
OLD ATLAS
AESI HOLDINGS INC.
By: /s/ John Turner
Name: John Turner
Title: President and Chief Financial Officer
[Signature Page to Amended and Restated Stockholders’ Agreement]
PRINCIPAL STOCKHOLDERS:
Ben M. Brigham
__/s/ Ben M. Brigham__________________
Name: Ben M. Brigham
Address for Notice:
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
Anne and Bud Oil & Gas Vested, LLC
By: /s/ Ben M. Brigham
Name: Ben M. Brigham
Title: Manager
Brigham Children’s Family LP
By: BCFP GP, LLC, its general partner
By: /s/ Ben M. Brigham
Name: Ben M. Brigham
Title: Co-Manager
Address for Notice for Signatories Above:
[***]
A. Lance Langford
By: /s/ A. Lance Langford
Name: A. Lance Langford
ALL Financial Trust
By: /s/ Brenda L. Langford
Name: Brenda L. Langford
Title: Trustee
[Signature Page to Amended and Restated Stockholders’ Agreement]
BLL Financial Trust
By: /s/ A. Lance Langford
Name: A. Lance Langford
Title: Trustee
Address for Notice for Signatories Above:
[***]
Gregory M. Shepard
By: /s/ Gregory M. Shepard
Name: Gregory M. Shepard
Address for Notice for Signatory Above:
[***]
Joel Hock
By: /s/ Joel Hock
Name: Joel Hock
Stacy Hock
By: /s/ Stacy Hock
Name: Stacy Hock
Address for Notice for Signatories Above:
[***]
[Signature Page to Amended and Restated Stockholders’ Agreement]
Richard Schmidt
By: /s/ Richard Schmidt
Name: Richard Schmidt
Schmidt Atlas, LLC
By: /s/ Richard Schmidt
Name: Richard Schmidt
Title: Manager
Address for Notice for Signatories Above:
[***]
The Sealy and Smith Foundation
By: /s/ Douglas Rogers
Name: Douglas Rogers
Title: Executive Director and Secretary/Treasurer
Address for Notice for Signatory Above:
[***]
Kirk Ginn
By: /s/ Kirk Ginn
Name: Kirk Ginn
Brian Leveille
By: /s/ Brian Leveille
Name: Brian Leveille
[Signature Page to Amended and Restated Stockholders’ Agreement]
Chad McEver
By: /s/ Chad McEver
Name: Chad McEver
Chris Scholla
By: /s/ Chris Scholla
Name: Chris Scholla
John Turner
By: /s/ John Turner
Name: John Turner
Dathan Voelter
By: /s/ Dathan C. Voelter
Name: Dathan Voelter
Address for Notice for Signatories Above:
5918 W. Courtyard Drive
Suite 500
Austin, TX 78730
Acknowledge & Agreed:
BRIGHAM REPRESENTATIVE:
_/s/ Ben M. Brigham______________
Name: Ben M. Brigham
Address for Notice:
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
[Signature Page to Amended and Restated Stockholders’ Agreement]
_/s/ Anne Brigham______________
Name: Anne Brigham
Address for Notice:
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
_/s/ David Brigham______________
Name: David Brigham
Address for Notice:
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
_/s/ Vince Brigham______________
Name: Vince Brigham
Address for Notice:
5918 W. Courtyard Dr., Suite 500
Austin, Texas 78730
[Signature Page to Amended and Restated Stockholders’ Agreement]