As filed with the Securities and Exchange Commission on February 10, 2012
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
U.S. Silica Holdings, Inc.
(Exact name of registrant as specified in its charter)
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Delaware
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26-3718801
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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8490 Progress Drive, Suite 300
Frederick, Maryland
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21701
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(Address of Principal Executive Offices)
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(Zip Code)
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U.S. Silica Holdings, Inc. 2011 Incentive Compensation Plan
(Full title of the plan)
Bryan A. Shinn
President and Chief Executive Officer
U.S. Silica Holdings, Inc.
8490 Progress Drive, Suite 300
Frederick, Maryland 21701
(800) 345-6170
(Name and address of agent for service and telephone
number, including area code, of agent for service)
Copies to:
Robert M. Hayward, P.C.
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
(312) 862-2000
Indicate by check mark whether
the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting
company in Rule 12b-2 of the Exchange Act (Check one):
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Large accelerated filer
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¨
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Accelerated filer
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¨
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Non-accelerated filer
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x
(Do not check if a smaller reporting company)
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Smaller reporting company
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¨
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CALCULATION OF
REGISTRATION FEE
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Title of securities to be registered
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Amount to be
registered(1)
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Proposed maximum
offering price per
share(2)
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Proposed maximum
aggregate offering
price(2)
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Amount of
registration
fee
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Common Stock, par value $0.01 per share
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1,480,880(3)
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$14.61
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$21,635,657
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$2,480
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Common Stock, par value $0.01 per share
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3,519,120(4)
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$16.10
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$56,657,832
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$6,493
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Total
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5,000,000 shares
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$78,293,489
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$8,973
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(1)
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Pursuant to Rule 416 under the Securities Act of 1933, as amended (the Securities Act), this Registration Statement shall also cover any additional shares
of common stock which become issuable under the above-named plan by reason of any stock dividend, stock split, recapitalization or any other similar transaction effected without the receipt of consideration which results in an increase in the number
of the outstanding shares of common stock.
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(2)
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Estimated solely for the purpose of calculating the registration fee in accordance with Rule 457(h) under the Securities Act. With respect to the 1,480,880 shares of
common stock issuable upon the exercise of stock options that are currently outstanding under the U.S. Silica Holdings, Inc. 2011 Incentive Compensation Plan (the 2011 Plan), the proposed maximum aggregate offering price is calculated
pursuant to Rule 457(h) under the Securities Act based on the weighted average exercise price of $14.61 per share for the options outstanding under the 2011 Plan. With respect to the 3,519,120 shares of common stock available for future issuance
under the 2011 Plan, the proposed maximum aggregate offering price is calculated pursuant to Rule 457(c) and Rule 457(h) under the Securities Act on the basis of $16.10 per share, the average of the high and low sale prices of our common stock on
the New York Stock Exchange on February 3, 2012.
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(3)
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Represents shares of common stock issuable upon exercise of stock options that are currently outstanding under the 2011 Plan.
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(4)
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Represents shares of common stock available for future issuance under the 2011 Plan.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1.
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Plan Information.
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The
documents containing the information specified in Part I will be delivered in accordance with Form S-8 and Rule 428(b) under the Securities Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission
(the Commission), either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities Act. These documents, and the documents incorporated by reference in this Registration
Statement pursuant to Item 3 of Part II of this Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
Item 2.
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Registrant Information and Employee Plan Annual Information.
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The written statement required by Item 2 of Part I is included in documents delivered to participants in the plan covered by this Registration Statement pursuant to Rule 428(b) under the Securities
Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3.
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Incorporation of Documents by Reference.
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The following documents, which have been filed by U.S. Silica Holdings, Inc. (the Company) with the Commission, are incorporated in this Registration Statement by reference:
(a) The Companys prospectus filed with the Commission on February 1, 2012 pursuant to Rule 424(b) under the
Securities Act, which prospectus forms a part of the Companys Registration Statement on Form S-1, as amended (Registration No. 333-175636); and
(b) The description of the Companys common stock, par value $0.01 per share, included under the caption Description of Capital Stock in the prospectus forming a part of the
Companys Registration Statement on Form S-1, initially filed with the Commission on July 18, 2011, including exhibits, and as amended (Registration No. 333-175636), which description has been incorporated by reference in Item 1
of the Companys Registration Statement on Form 8-A (File No. 001-35416) filed with the Commission on January 31, 2012 pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the Exchange Act),
including any amendments or reports filed for the purpose of updating such description.
All reports and other documents
subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included with
such information, unless otherwise indicated therein) after the date of this Registration Statement, but prior to the filing of a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all
securities then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Registration Statement to the extent
that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Registration Statement.
Item 4.
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Description of Securities.
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Not applicable.
Item 5.
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Interests of Named Experts and Counsel.
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The validity of the common stock offered hereby will be passed upon for the Company by Kirkland & Ellis LLP, Chicago, Illinois. Kirkland & Ellis LLP represents entities affiliated with
Golden Gate Private Equity, Inc., which owns shares of the Companys common stock, in connection with legal matters. Certain partners of Kirkland & Ellis LLP are members of a limited partnership that is an investor in one or more
investment funds affiliated with Golden Gate Private Equity, Inc.
Item 6.
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Indemnification of Directors and Officers.
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The Company is incorporated under the laws of the State of Delaware. Section 102(b)(7) of the General Corporation Law of the State of Delaware (the DGCL) allows a corporation to provide
in its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty
of loyalty, failed to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of
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a dividend or approved a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Companys second amended and restated certificate of
incorporation provides for this limitation of liability.
Section 145 of the DGCL (Section 145) provides that
a Delaware corporation may indemnify any person who was, is or is threatened to be made, party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or
in the right of such corporation), by reason of the fact that such person is or was an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director, officer, employee or agent of
another corporation or enterprise. The indemnity may include expenses (including attorneys fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or
proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporations best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe
that his conduct was illegal. A Delaware corporation may indemnify any persons who are, were or are threatened to be made, party to any threatened, pending or completed action or suit by or in the right of the corporation by reason of the fact that
such person is or was a director, officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys fees) actually and reasonably incurred by such person in connection with the defense or
settlement of such action or suit, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporations best interests, provided that no indemnification is permitted without judicial
approval if the officer, director, employee or agent is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense of any action referred to above, the corporation must indemnify
him against the expenses which such officer or director has actually and reasonably incurred.
Section 145 further
authorizes a corporation to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation or is or was serving at the request of the corporation as a director, officer, employee or
agent of another corporation or enterprise, against any liability asserted against him and incurred by him in any such capacity, or arising out of his or her status as such, whether or not the corporation would otherwise have the power to indemnify
him under Section 145.
The Companys second amended and restated bylaws provide that the Company must indemnify its
directors and officers to the fullest extent authorized by the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery of an undertaking, by or on behalf of an indemnified person,
to repay all amounts so advanced if it should be determined ultimately that such person is not entitled to be indemnified.
The Company has entered into indemnification agreements with each of its executive officers and directors. The indemnification agreements
provide the executive officers and directors with contractual rights to indemnification, expense advancement and reimbursement, to the fullest extent permitted under the DGCL. The Company has also entered into an indemnification priority agreement
with Golden Gate Private Equity, Inc. to clarify the priority of advancement of expenses and indemnification obligations among the Company, its subsidiaries and any of its directors appointed by Golden Gate Private Equity, Inc. or its affiliates and
other related matters.
The indemnification rights set forth above shall not be exclusive of any other right which an
indemnified person may have or hereafter acquire under any statute, provision of the Companys second amended and restated certificate of incorporation or second amended and restated bylaws, agreement, vote of stockholders or disinterested
directors or otherwise.
The Company maintains standard policies of insurance that provide coverage (1) to the
Companys directors and officers against loss arising from claims made by reason of breach of duty or other wrongful act and (2) to the Company with respect to indemnification payments that the Company may make to such directors and
officers. The form of Underwriting Agreement filed as Exhibit 1.1 to the Companys Registration Statement on Form S-1 (Registration No. 333-175636) provides for indemnification of the Companys directors and officers by the
underwriters party thereto against certain liabilities incurred in connection with the Companys initial public offering.
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Item 7.
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Exemption from Registration Claimed.
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Not applicable.
Reference is
made to the attached Exhibit Index, which is incorporated by reference herein.
(a) The
undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to the Registration Statement:
(i) To include any prospectus required by
Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the Registration Statement.
Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth
in the Calculation of Registration Fee table in the effective Registration Statement; and
(iii)
To include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement or any material change to such information in the Registration Statement;
provided, however
, that paragraphs (a)(1)(i) and (a)(1)(ii) above do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration
Statement;
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial
bona fide
offering thereof; and
(3) To remove from registration by means of a post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification
for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is
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against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the
securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly
caused this Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Frederick, State of Maryland, on February 10, 2012.
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U.S. SILICA HOLDINGS, INC.
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By:
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S
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RYAN
A. S
HINN
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Name:
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Bryan A. Shinn
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Title:
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President and Chief Executive Officer
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POWER OF ATTORNEY
KNOW ALL PERSONS BY THESE PRESENTS, that each officer and director of U.S. Silica Holdings, Inc. whose signature appears below hereby severally constitutes and appoints Bryan A. Shinn, William A. White
and Alan Jacobs, and each of them individually (with full power to each of them to act alone), with full power of substitution and resubstitution, his true and lawful attorney-in fact and agent, with full powers to each of them to sign for us, in
our names and in the capacities indicated below, the Registration Statement on Form S-8 and to file the same, with all exhibits thereto, and other documents in connection therewith, with the Securities and Exchange Commission, and any and all
amendments to said Registration Statement (including post-effective amendments), granting unto said attorneys, and each of them, full power and authority to do and perform each and every act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as each of them might or could do in person, and hereby ratifying and confirming all that said attorneys, and each of them, or their substitute or substitutes, may lawfully do or cause to be done by
virtue of this power of attorney. This power of attorney may be executed in counterparts and all capacities to sign any and all amendments.
Pursuant to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the capacities indicated on February 10, 2012.
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Signature
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Title
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S
/ B
RYAN
A. S
HINN
Bryan A. Shinn
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President, Chief Executive Officer and Director
(Principal Executive Officer)
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/s/ W
ILLIAM
A. W
HITE
William A. White
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Chief Financial Officer
(Principal Financial and Accounting Officer)
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/s/ R
AJEEV
A
MARA
Rajeev Amara
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Director
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/s/ P
RESCOTT
H. A
SHE
Prescott H. Ashe
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Director
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Signature
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Title
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/s/ W
ILLIAM
J. K
ACAL
William J. Kacal
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Director
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/s/ C
HARLES
S
HAVER
Charles Shaver
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Director
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/s/ B
RIAN
S
LOBODOW
Brian Slobodow
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Director
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EXHIBIT INDEX
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Exhibit
Number
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Description
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4.1
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Second Amended and Restated Certificate of Incorporation of U.S. Silica Holdings, Inc. (incorporated by reference from Exhibit 3.1 to the Registrants Current Report on Form
8-K filed with the Commission on February 6, 2012 (File No. 001-35416))
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4.2
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Second Amended and Restated Bylaws of U.S. Silica Holdings, Inc. (incorporated by reference from Exhibit 3.2 to the Registrants Current Report on Form 8-K filed with the
Commission on February 6, 2012 (File No. 001-35416))
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4.3
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Specimen Common Stock Certificate of U.S. Silica Holdings, Inc. (incorporated by reference from Exhibit 4.1 to the Registrants Registration Statement on Form S-1, as amended,
filed with the Commission on December 7, 2011 (File No. 333-175636))
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5.1
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Opinion of Kirkland & Ellis LLP
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23.1
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Consent of Grant Thornton LLP
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23.2
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Consent of Kirkland & Ellis LLP (included in Exhibit 5.1)
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24.1
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Powers of Attorney (included on signature page hereto)
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99.1
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U.S. Silica Holdings, Inc. 2011 Incentive Compensation Plan (incorporated by reference from Exhibit 10.14 to the Registrants Registration Statement on Form S-1, as amended,
filed with the Commission on August 29, 2011 (File No. 333-175636))
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