First Amendment to the Business Combination Agreement and Plan of Reorganization

Exhibit 10.1

FIRST AMENDMENT TO THE 

BUSINESS COMBINATION AGREEMENT AND PLAN OF REORGANIZATION

Dated as of June 5, 2024

This First Amendment to the Business Combination Agreement and Plan of Reorganization, (this “Amendment”), is made and entered into as of the date first set forth above (the “Amendment Date”) by and among ROTH CH ACQUISITION V CO., a Delaware corporation (“Roth”), ROTH CH V MERGER SUB CORP., a Delaware corporation (“Merger Sub”), and New Era Helium Corp., a Nevada corporation (the “Company”). Each of Roth, Merger Sub and the Company may be referred to in this Agreement as a “Party,” or collectively as the “Parties.”

WHEREAS the Parties are all of the Parties to that certain Business Combination Agreement and Plan of Reorganization dated as of January 3, 2024, (as may be amended, modified or supplemented from time to time, the “Business Combination Agreement”); and

WHEREAS, the Parties now desire to amend the Business Combination Agreement;

NOW THEREFORE, in consideration of the mutual agreements contained herein and for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

“Roth Certificate of Incorporation” means the Amended and Restated Certificate of Incorporation of Roth dated November 30, 2021, as subsequently amended from time to time and, after the Initial Merger shall mean the Amended and Restated Certificate of Incorporation of Holdings as set forth on Exhibit D.

(a)    Initial Merger. Subject to receipt of the approval for the Roth Proposals, immediately prior to the Closing, Roth shall cause the Initial Merger to occur, including by (i) filing with the Secretarys of State of the State of Delaware and Nevada a Certificate of Merger, in form and substance reasonably acceptable to Roth and the Company and (ii) filing with the Secretary of State of the State of Nevada the Amended and Restated Certificate of Incorporation of Holdings, in substantially the form attached as Exhibit D to this Agreement (with such changes as may be agreed in writing by Roth and the Company). In accordance with applicable Law, the Initial Certificate of Merger shall provide that at the effective time of the Initial Merger, by virtue of the Initial Merger, and without any action on the part of any Roth Stockholder: (i) each then issued and outstanding share of common stock of Roth shall convert automatically into one share of common stock of Holdings; (ii) each then issued and outstanding Roth Warrant shall convert automatically into one warrant to acquire one share of common stock, par value $0.0001 per share, of Holdings, and (iii) each then issued and outstanding Roth Unit shall separate and convert automatically into one share of common stock of Holdings and, one-half of one redeemable Warrant of Holdings. After the Initial Merger, all references to Roth herein shall mean Holdings.

(b)  Merger between Merger Sub and the Company. Upon the terms and subject to the conditions set forth in Article VIII [CONDITIONS TO THE MERGER], and in accordance with the NRS and the DGCL, at the Effective Time, Merger Sub shall be merged with and into the Company. As a result of the Merger, the separate corporate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation of the Merger (the “Surviving Corporation”).

(c) At the Closing, Roth shall amend and restate, effective as of the Effective Time, the Holdings Certificate of Incorporation to be as set forth on Exhibit D.

(d)  At the Closing, Roth shall amend and restate, effective as of the Effective Time, the bylaws of Holdings to be as set forth on Exhibit E.

“by either Roth or the Company if the Effective Time shall not have occurred prior to the date that is 270 days after the date of this Agreement (the “Outside Date”); provided, however, that this Agreement may not be terminated under this Section 9.01(b) (Termination) by or on behalf of any Party that either directly or indirectly through its affiliates is in breach or violation of any representation, warranty, covenant, agreement or obligation contained in this Agreement and such breach or violation is the principal cause of the failure of a condition set forth in Article VIII (CONDITIONS TO THE MERGER) on or prior to the Outside Date; or”

[Signature Pages Follow]

IN WITNESS WHEREOF, each of the Parties has caused this Amendment to be duly executed on its behalf as of the Amendment Date.

[Signature Page to First Amendment to Business Combination Agreement and Plan of Reorganization]