Exhibit 2.1
FIRST AMENDMENT
TO
THE
AGREEMENT AND PLAN OF MERGER
BY
AND AMONG
ALLIS-CHALMERS ENERGY INC.,
BRONCO DRILLING COMPANY, INC.
AND
ELWAY MERGER SUB, INC.
Dated as of June 1, 2008
TABLE OF CONTENTS
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Article 1
Definitions
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Article 2 The
Merger
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Article 3
Representations and Warranties of the Company
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Article 4
Representations and Warranties of Parent and Merger Sub
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Article 5
Covenants
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Article 6
Conditions
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Article 7
Miscellaneous
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FIRST AMENDMENT TO THE
AGREEMENT AND PLAN OF MERGER
This First Amendment to the Agreement
and Plan of Merger, dated as of June 1, 2008 (this “
Amendment ”), is by and among ALLIS-CHALMERS ENERGY
INC., a Delaware corporation (“ Parent ”), ELWAY
MERGER SUB, INC., a Delaware corporation and a direct, wholly owned
subsidiary of Parent (“ Merger Sub ”), and
BRONCO DRILLING COMPANY, INC., a Delaware corporation (the “
Company ”).
Recitals
WHEREAS , Parent, Merger Sub
and the Company (each, a “ Party ,” and
collectively, the “ Parties ”) entered into an
Agreement and Plan of Merger dated as of January 23, 2008 (the
“ Original Agreement ”), which the boards of
directors of each of the Parties desire to amend in order to effect
certain modifications deemed desirable by each of such boards of
directors;
WHEREAS , the boards of
directors of each of the Parties have approved (i) this
Amendment and (ii) the Merger (as defined below), upon the
terms and subject to the conditions of the Original Agreement, as
amended by this Amendment, and the Delaware General Corporation
Law, as amended (the “ DGCL ”), and the Delaware
Limited Liability Company Act, as amended (the “ Delaware
LLC Act ”);
WHEREAS , the boards of
directors of each of the Parties have determined that the Merger,
this Amendment, the Original Agreement and the transactions
contemplated by the Original Agreement, as amended by this
Amendment, are advisable and in the best interests of their
respective companies and stockholders;
WHEREAS , for federal income
tax purposes, the Parties intend for the Merger to qualify as a
“reorganization” within the meaning of Section 368(a)
of the Internal Revenue Code, and that the Original Agreement, as
amended by this Amendment, constitutes a plan of reorganization
within the meaning of Section 1.368-2(g) of the Treasury
Regulations (as defined in the Original Agreement); and
WHEREAS , the Parties desire
that after the date hereof and prior to the Effective Time of the
Merger, Merger Sub become a limited liability company, organized
under the laws of the State of Delaware, pursuant to a conversion
effected under Section 266 of the DGCL and Section 18-214
of the Delaware LLC Act;
NOW , THEREFORE , for
and in consideration of the recitals and the mutual covenants and
agreements set forth in the Original Agreement and this Amendment,
the Parties agree to amend the Original Agreement as follows:
Article 1
Definitions
Section 1.1 Capitalized
terms used but not defined in this Amendment shall have the
respective meanings given to such terms in the Original Agreement.
Each reference to “hereof,”
“hereunder,” “hereby,” and “this
Agreement” in the Original Agreement shall, from and after
the date of this Amendment, refer to the Original Agreement, as
amended by this Amendment.
Section 1.2 The
definitions of the following capitalized terms found in
Section 1.1 of the Original Agreement are hereby
amended and restated in their entirety as set forth below:
“ Certificate of Merger
” means the certificate of merger, prepared and executed in
accordance with the applicable provisions of the DGCL, the Delaware
LLC Act and this Agreement, filed with the Secretary of State of
the State of Delaware to effect the Merger and the change of Merger
Sub’s name to “Bronco Drilling Company
LLC.”
“ Merger ” means
the merger of the Company with and into Merger Sub, under the DGCL
and the Delaware LLC Act, with Merger Sub continuing as the
surviving company and changing its name to “Bronco Drilling
Company LLC,” upon the terms and subject to the conditions
set forth in this Agreement, and in accordance with the
requirements of the DGCL and the Delaware LLC Act.
Section 1.3 Each of the
following definitions is hereby added to Section 1.1 of
the Original Agreement in the correct alphabetical location within
such Section:
“ Conversion ”
means the conversion of Merger Sub from a Delaware corporation to a
Delaware limited liability company pursuant to Section 266 of
the DGCL and Section 18-214 of the Delaware LLC Act.
“ Delaware LLC Act
” means the Delaware Limited Liability Company Act, as
amended.
“ First Amendment Date
” means June 1, 2008.
“ New Merger Sub Charter
Documents ” has the meaning given to such term in
Section 4.1 .
“ Old Merger Sub Charter
Documents ” has the meaning given to such term in
Section 4.1 .
“ Original Agreement
” means the Agreement and Plan of Merger, dated as of
January 23, 2008, among the Parties.
“ Surviving Company
” means the entity that survives the Merger pursuant to
Section 2.2 .
Section 1.4
The definitions of “Surviving
Corporation” and of “Parent Common Stock Value”
appearing in Section 1.1 of the Original Agreement are
hereby deleted in their entirety.
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Section 1.5 Pursuant to
this Amendment, each reference to the term “Surviving
Corporation” in the Original Agreement shall be deemed to be
a reference to the term “Surviving Company.”
Article 2
The Merger
Section 2.1
Section 2.1 of the Original Agreement is hereby amended
and restated in its entirety as follows:
Section 2.1 The
Merger . On the terms and subject to the conditions set
forth in this Agreement and in accordance with the provisions of
this Agreement, the Certificate of Merger, the DGCL and the
Delaware LLC Act, at the Effective Time, the Company shall be
merged with and into Merger Sub and the name of Merger Sub shall be
changed to be “Bronco Drilling Company LLC.”
Section 2.2
Section 2.2 of the Original Agreement is hereby amended
and restated in its entirety as follows:
Section 2.2 Effect
of the Merger . Upon the effectiveness of the Merger, the
separate corporate existence of the Company shall cease and Merger
Sub shall be the surviving entity in the Merger (referred to from
time to time herein as the “Surviving Company”). Merger
Sub shall continue its company existence under the Laws of the
State of Delaware with all its rights, privileges, immunities and
franchises continuing unaffected by the Merger, except that the
name of Merger Sub shall be changed upon effectiveness of the
Merger to be “Bronco Drilling Company LLC.” The Merger
shall have the effects specified in this Agreement, the Certificate
of Merger, the DGCL and the Delaware LLC Act.
Section 2.3
Section 2.3 of the Original Agreement is hereby amended
and restated in its entirety as follows:
Section 2.3
Governing Instruments, Directors and Officers of the
Surviving Company .
(a) At the Effective Time, the
certificate of formation of Merger Sub, as in effect immediately
prior to the Effective Time, shall be the certificate of formation
of the Surviving Company until subsequently amended in accordance
with its terms and applicable Law.
(b) At the Effective Time, the
limited liability company agreement of Merger Sub, as in effect
immediately prior to the Effective Time, shall be the limited
liability company agreement of the Surviving Company until
subsequently amended in accordance with its terms and applicable
Law.
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(c) The managers and officers of
Merger Sub immediately prior to the Effective Time shall continue
as the managers and officers, respectively, of the Surviving
Company from the Effective Time until their respective successors
have been duly elected or appointed in accordance with the
certificate of formation and limited liability company agreement of
the Surviving Company and applicable Law.
Section 2.4
(a) Section 2.4(a) of the
Original Agreement is hereby amended and restated in its entirety
as follows:
(a) Merger Sub Membership
Interests . At the Effective Time, by virtue of the Merger
and without any action on the part of any holder thereof, the
membership interests of Merger Sub outstanding immediately prior to
the Merger shall remain outstanding and continue as membership
interests of the Surviving Company.
(b) Section 2.4(c)(i)(A)
of the Original Agreement is hereby amended and restated in its
entirety as follows:
(c) Company
Securities.
(i) Company Common
Stock.
(A) At the Effective Time, by virtue
of the Merger and without any action on the part of Merger Sub,
Parent, the Company or any holder of any Equity Interest in any of
such Parties (but subject to the provisions of
Section 2.5(e) ), each share of Company Common Stock
issued and outstanding immediately prior to the Effective Time
(excluding Dissenting Shares and shares to be cancelled pursuant to
Section 2.4(c)(ii) , but including, without limitation,
shares of Company Common Stock that are issued prior to the
Effective Time in connection with Company Stock Options) shall be
converted into the right to receive (i) an amount in cash
(without interest) (the “ Cash Consideration ”)
equal to the quotient, calculated to the nearest $0.01, resulting
from dividing $200,000,000 by the aggregate number of issued and
outstanding shares of Company Common Stock immediately prior to the
Effective Time (excluding shares to be cancelled pursuant to
Section 2.4(c)(ii) , but including, without limitation,
shares of Company Common Stock that are issued prior to the
Effective Time in connection with Company Stock Options and all
Dissenting Shares), and (ii) a number (which may be less than
one) of fully paid and nonassessable shares of Parent Common Stock
(the “ Parent Stock Consideration ”) equal to
the Exchange Ratio. “ Exchange Ratio ” means the
fraction, expressed as a decimal,
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calculated to
the nearest one-ten thousandth, the numerator of which is
(a) 16,846,500 and the denominator of which is (b) the
aggregate number of issued and outstanding shares of Company Common
Stock immediately prior to the Effective Time (excluding shares to
be cancelled pursuant to Section 2.4(c)(ii) , but
including, without limitation, shares of Company Common Stock that
are issued prior to the Effective Time in connection with Company
Stock Options and all Dissenting Shares). The Cash Consideration
and the Parent Stock Consideration to be received by the holders of
Company Common Stock hereunder (together with the cash in lieu of
fractional shares of Parent Stock as specified below) are referred
to herein collectively as the “ Merger Consideration
.”
Section 2.5 The first
sentence of Section 2.8 of the Original Agreement is
hereby amended by inser
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