Exhibit 2.1
MEMBERSHIP INTEREST PURCHASE
AGREEMENT
This Membership Interest Purchase Agreement (the
“ Agreement ”) is entered into effective
September 18, 2009 by and among (i) Carso Infraestructura y
Construcción S.A.B DE C.V., a sociedad anónima
bursátil de capital variable ,
organized under the laws of the United Mexican States (“
Mexico ”) (“ Buyer ”), and (ii)
Bronco Drilling Company, Inc., a Delaware corporation (“
Bronco ” or “ Seller ”), and
Saddleback Properties LLC, an Oklahoma limited liability company
(“ Saddleback ” or “ Seller
,” and together with Bronco, “ Sellers
”).
A.
WHEREAS, each of Bronco and Saddleback beneficially own directly
one membership interest (each a “ Membership Interest
” and together the “ Membership Interests
”) in Bronco Drilling MX, S. de R.L. de C.V., a company
organized under the laws of Mexico (the “ Company
”).
B. WHEREAS,
upon the terms and subject to the conditions set forth in this
Agreement, (i) Bronco desires to sell to Buyer 60% of the
Membership Interest owned by Bronco, and (ii) Saddleback desires to
sell to Buyer all of the Membership Interest owned by
Saddleback.
NOW, THEREFORE, in consideration of the premises
and the mutual promises herein made, and in consideration of the
representations, warranties, covenants and agreements herein
contained, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
Parties, intending to be legally bound, agree as
follows:
1. Purchase and
Sale of Membership Interests . Upon the terms and
subject to the fulfillment or waiver by the applicable Party hereto
of the conditions ( condiciones suspensivas ) set forth
herein, (a) Saddleback shall sell, transfer, convey, assign and
deliver to Buyer at the Closing, and Buyer shall purchase and
accept delivery from Saddleback at the Closing, all of right, title
and interest of Saddleback in and all of the Membership Interest
owned by Saddleback free and clear of any Liens, and (b) Bronco
shall sell, transfer, convey, assign and deliver to Buyer at the
Closing, and Buyer shall purchase and accept delivery from Bronco
at the Closing, all of the right, title and interest of Bronco in
and to 60% of the Membership Interest owned by Bronco, free and
clear of any Liens.
2.1 Purchase
Price . The purchase price to be paid by Buyer to the Sellers
on the Closing Date in consideration for the Membership Interests
sold by Sellers to Buyer hereto (the “ Purchase Price
”) shall be, (i) an aggregate amount of Thirty Million 00/100
Dollars (US$30,000,000.00), plus (ii) an amount equal to 60% of the
value added taxes paid by or on behalf of the Company as a result
of the importation of the Rigs to Mexico, provided however that,
(a) supporting documentation is delivered by Sellers to Buyer, and
(b) Sellers shall reimburse Buyer pro rata for any such valued
added taxes refunded directly to Bronco and not the
Company.
2.2 Payment of
Purchase Price . Subject to the fulfillment or waiver of the
conditions precedent set forth in Sections 3.4 and Section 6
hereof, the Purchase Price shall be delivered by Buyer to Sellers
on the Closing Date in United States Dollars by wire transfer of
immediately available funds to an account designated in writing by
Sellers. Each Seller will receive its allocable portion
of the Purchase Price pursuant to its Membership Interest’s
percentage ownership in the Company.
3.1 Closing
. The closing of the transactions contemplated herein
(the “ Closing ”) shall take place at such
location as may be mutually agreed by the parties
hereto.
3.2 Closing
Date . The date of the Closing (the “
Closing Date ”) shall occur when all of the conditions
contained in Sections 3.4 and Section 6 hereto, have been satisfied
or waived by the applicable party.
3.3 Proceedings at
Closing . Notwithstanding the obligations of the
parties under this Agreement, all proceedings to be taken and all
documents to be executed and delivered by all parties at the
Closing shall be deemed to have been taken and executed and
delivered simultaneously, and no proceedings shall be deemed taken
nor any documents executed or delivered until all have been taken,
executed and delivered.
3.4 Other Actions
on or Prior to Closing . The following actions shall
take place on or prior to the Closing (each to be considered as a
condition precedent):
(a) The
Sellers shall deliver to Buyer the stock record book (with the
appropriate registration with respect to the transfer of the
Company’s Membership Interest from each Seller to Buyer),
minute book and any other corporate record or book of the
Company;
(b) The
Sellers shall deliver to Buyer a certificate from the Secretary of
the Company evidencing that the transfer of the Company’s
Membership Interest from each Seller to Buyer has been registered
in the stock record book of the Company;
(c) That
certain Operating Agreement of the Company by and among Buyer and
Bronco, has been duly executed and delivered (the “
Operating Agreement ”);
(d) The
Sellers shall cause a General Meeting of the members of the Company
to be held, at which, (i) the current bylaws of the Company are
amended as set forth in the Operating Agreement, (ii) the directors
and members of the Board of the Company set forth in Schedule 3.4
herein, shall be removed and each of the persons whose names are
provided by Buyer to the Sellers prior to the Closing
Date shall be elected as directors and/or members of the Board in
their place, and (iii) to formalize the granting and revocation of
certain powers of attorney in the Company pursuant to the Operating
Agreement.
(e) Any and all
actions by Sellers pursuant to Section 6 hereof shall be taken
and/or complied, including without limitation the contribution of
the Rigs and of the collection and/or rights to profits from the
Pemex Contract (prior Pemex written consent and/or other
arrangement as mutually agreed by the parties).
4. Representations
and Warranties of the Sellers . Each of the Sellers,
jointly and severally, represents and warrants to Buyer, with
respect to itself and/or to the Company as the case may be, as
follows:
4.1 Limited
Liability Company Status . The Company is a
“Sociedad de Responsailidad Limitada de Capital
Variable” duly organized, validly existing and in good
standing under the laws of Mexico. The Company has, and
at all times has had, full power and authority to own its
properties as such properties are now owned and to conduct its
business as and where such business has been and is now being
conducted. True, correct and complete copies of the constitutive
documents, including the estatutos sociales, each as amended to
date, of the Company are attached hereto as Schedule
4.1. Moreover, the corporate books (including the board,
and members minute books and stock registry book) of the Company
are true, correct, accurate and complete and reflect all amendments
made through the date of this Agreement, including but not limited
to the complete records of all issuances, transfers, and
cancellations of the membership interests of the equity of the
Company and/or any other registrations or entries required by
applicable law.
4.2 Stock and
Capitalization .
(a) The
authorized equity of the Company is set forth on Schedule 4.2(a),
and such issued and outstanding equity of the Company consists in
all of the equity of the Company. All of the outstanding
equity of the Company, including but not limited to the Membership
Interests, has been validly issued and is fully paid and
nonassessable and are not subject to any preemptive rights, rights
of first refusal or similar rights. There are no, nor
are there any agreements, commitments or arrangements not yet fully
performed and/or performed which would result in any, outstanding
agreements, arrangements, subscriptions, options, warrants, calls,
rights or other commitments of any character relating to the
issuance, sale, purchase or redemption of the Membership Interests
and/or any additional membership interests. There are no
outstanding securities of the Company other than the Membership
Interests owned by Sellers. There are no outstanding or
authorized membership interest appreciation phantom membership
interests or similar rights with respect to the
Company. There are no voting trusts, proxies or other
agreements or understanding with respect to the voting of the
membership interests of the Company. Sellers own of record, free
and clear of all options, calls, puts, rights to subscribe,
conversion rights and other encumbrances, the Membership
Interests
(b) At
Closing, each of the Sellers will have good, valid and marketable
legal and beneficial title to its Membership Interest, in each case
free and clear of any Liens. The registration of Buyer
as owner of the Membership Interests purchased by Buyer hereto in
the Company’s registry book will vest the Buyer on the
Closing Date with title to all of such Membership Interests
purchased by Buyer, free and clear of any Liens (except those
arising by or through Buyer).
For purposes of this Agreement, “
Lien ” means any lien, pledge, mortgage, deed of
trust, security interest, easement or similar encumbrance, included
but not limited to any encroachment or restriction of any kind,
including any charge, seizure, attachment, mortgage, hypothecation,
trust deed, or guaranty trust, except for any lien, pledge,
mortgage, deed of trust, security interest, easement or similar
encumbrance arising from that certain Credit Agreement, dated as of
the date hereof, by and between Bronco, certain subsidiaries
thereof, and Banco Inbursa S.A., and the transactions contemplated
thereby.
(c) The
Company has no subsidiaries and does not, directly or indirectly,
(i) own, of record or beneficially, any outstanding voting
securities or other equity interests in any corporation,
partnership, joint venture or other entity or (ii) control any
corporation, partnership, joint venture or other entity.
(d) At
Closing, the Sellers will have the full right, power and capacity
to sell, assign and transfer the Membership Interests sold by
Sellers to Buyer.
(e) There
are no obligations, contingent or otherwise, of the Company to (i)
repurchase, redeem or otherwise acquire any Company equity
interests, or (ii) provide funds to, or make
any investment in (in the form of a loan, capital
and/or equity contribution or otherwise), or provide any guarantee
with respect to the obligations of, any person. There
are no bonds, debentures, notes or other Debt of the Company having
the right to vote or consent (or, convertible into, or exchangeable
for, equity interests having the right to vote or consent) on any
matters on which members (or other equity holders) of the Company
may vote. For purposes of this Agreement,
“Debt” means the principal amount of all indebtedness
for borrowed money of the Company on a consolidated basis including
capitalized leases, short term and long term bank loans, and other
financial liabilities or similar interest-bearing liabilities
outstanding of the Company determined in accordance with
NIF.
4.3 Authorization
of Agreement . Each of the Sellers has the requisite
power and authority to execute and deliver this Agreement and each
other agreement, document, instrument or certificate contemplated
by this Agreement or to be executed by any of the Sellers in
connection with the consummation of the transactions contemplated
hereby (all such other agreements, documents, instruments and
certificates required to be executed by any of the Sellers or the
Buyer being hereinafter referred to, collectively, as the “
Related Documents ”, and the transaction contemplated
by this Agreement and the Related Documents being hereinafter
referred to, collectively, as the “ Sale Transaction
”), and, to perform fully its obligations hereunder and
thereunder. This Agreement has been, and each of the
Related Documents will be, on or prior to the Closing Date, duly
executed and delivered by each of the Sellers. The execution,
delivery and performance of this Agreement and the Related
Documents by it and the consummation of the transactions
contemplated hereby and thereby have been duly and validly
authorized by all necessary action on the part of such
Seller. This Agreement constitutes, and each of the
Related Documents, will constitute, when so executed and delivered,
valid and binding obligations of the Sellers, enforceable against
each of them in accordance with their terms.
4.4 Conflicts;
Consents of Third Parties .
(a) Subject to receipt of the consents,
approvals and/or waivers set forth herein, at Closing, the
execution, delivery and performance by the Sellers of this
Agreement and the Related Documents and the consummation of the
Sale Transaction will not (i) conflict with or violate any
provision of the constitutive documents, including the estatutos
sociales, and related organizational documents, regulations or
other relating documents of the Company; (ii) conflict with,
violate, result in the breach or termination of,
or constitute a default or give rise to any right of
termination or acceleration or right to increase the obligations or
otherwise modify the terms under any contract, agreement, license,
permit, instrument or order to which the Company or any Seller is a
party or by which any of them or any of their assets is bound or
subject which would cause Losses; (iii) constitute a violation or
default of any applicable Law or any other
effective Contract held by the Company with any Person;
(iv) result in the creation of any Lien upon any of the Membership
Interests, or any other membership interests, or any Asset of the
Company (except those arising by or through Buyer) or permit the
acceleration of the maturity of any Debt and/or Liability of the
Company; (v) relieve any party to any contract with the Company of
that party’s obligations thereunder or enable such third
party to terminate its obligations thereunder or declare a breach
thereunder.
(b) Except
as required by this Agreement and the Operating Agreement and to
memorialize the transactions contemplated hereby, no approval,
authorization, consent, registration, franchise, license, permit or
certificate by any Governmental Body or waiver of, declaration or
filing with or notification to any Governmental Body is required on
the part of the Company or any Seller in connection with the
execution, delivery or performance of this Agreement or the Related
Documents or the consummation of the Sale Transaction.
For purposes of
this Agreement, “Governmental Body” shall mean (a) the
United States of America, (b) the United Mexican States, (c) any
state, province, county, municipality, taxing, or zoning authority
or other governmental subdivision within the United States of
America or the United Mexican States, and (d) any court or
governmental department, commission, board, bureau, agency or other
instrumentality or governmental subdivision of the United States of
America or the United Mexican States.
4.5 Financial
Statements . The Sellers have delivered to Buyer
true, correct and complete copies of the consolidated and
unconsolidated unaudited balance sheet of the Company as of
December 31, 2008 and the related unaudited statements of results
of operations of the Company for the fiscal year ended December 31,
2008 plus complete copies of the unaudited financial statements for
the quarter ending June 30, 2009, including in both cases, the
related notes and schedules thereto and all auditors’ reports
thereon, if any (the “ Financial Statements ”),
which are attached hereto under Schedule 4.5. The Financial
Statements have been prepared in accordance with NIF, and present
in all respects the financial position and results of operations of
the Company as of the dates and for the periods
indicated.
4.6 Absence of
Undisclosed Liabilities . Except as reflected in the
Financial Statements, (i) as of the Closing Date and/or as of the
last day of the respective periods covered by the Financial
Statements or such information as set forth on Schedule 4.6, as the
case may be, there were no and would not be any Liabilities or
obligations of any nature (whether accrued, contingent and/or of
any other kind) of the Company that were required by NIF to be
reflected in such Financial Statements and/or that would be
expected to result in Losses in excess of U.S.$100,000.00 that were
not so reflected, and (ii) since the last day of the respective
periods covered by the Financial Statements, the Company has not
incurred any Liabilities that would be required by NIF to be
reflected in the Company’s audited financial statements for
the periods ended after such date and/or that would be expected to
result in Losses in excess of U.S.$100,000.00. Moreover, there are
no (i) deficiencies and weaknesses in the design or operation of
internal controls over financial reporting which are likely to
adversely affect the Company ability to record, process, summarize
and report financial information and (ii) any past or present
fraud, or other criminal conduct that involves management or other
employees who have a significant role in the Company’s
internal controls over financial reporting.
4.7 Accounts; Safe
Deposit Boxes; Powers of Attorney; Officers and Directors .
Schedule 4.7 sets forth (i) a true and correct list of all bank and
savings accounts, certificates of deposit and safe deposit boxes of
the Company (together with the name and address of each bank where
such items are held) and those persons authorized to sign thereon
or have access thereto, (ii) a true and correct list of all powers
of attorney granted by the Company and those persons authorized to
act thereunder and (iii) a true and correct list of all incumbent
directors ( miembros del consejo de administración )
and managers ( gerentes ) of the Company.
4.8 Conduct of
Business . Since its incorporation the Company has
conducted its business in the ordinary course of business and
consistent with practice, and the Company has not:
(a) sold,
assigned, transferred, pledged, leased or otherwise disposed of any
individual asset with a total value in excess of
US$250,000.00;
(b) incurred
any Liabilities valued in an aggregate principal amount in excess
of US$250,000.00;
(c) cancelled,
waived, permitted to lapse or otherwise disposed of any rights of
value outside of the ordinary course of business;
(d) changed
its accounting methods, principles or practices in any respect,
other than as required by applicable Law;
(e) except
for those Contracts listed on Schedule 4.12, entered into any
transaction or contract, or amended or terminated any transaction
or contract, (i) valued and/or worth in an aggregate principal
amount in excess of US$250,000.00 or (ii) having a term of more
than twelve (12) months, except for those that can be terminated at
no cost or consequence by either Party without cause through a
thirty (30) day prior written notice of termination;
(f) split, combined or reclassified
the shares of its membership interests or declared, set
aside, made or paid any dividend or other distribution in respect
of its membership interests or purchased or redeemed, directly or
indirectly, any membership interests of its equity;
(g) issued or sold (or agreed to
issue or sell) any membership interests of its equity or any
options, warrants, conversion or other rights to purchase any such
membership interests or any securities convertible into or
exchangeable for such membership interests, or granted, or agreed
to grant, any other such options;
(h) increase by more than five percent (5%) the
payroll of the base salary or hourly wages payable to its employees
or the salary and/or the benefits provided to any of its officers,
directors, shareholders, managers, members, consultants or agents
or employees, other than increases that are required by applicable
Law or the terms of any applicable agreement (including any
collective bargaining agreement if any) or Employee Benefit Plan if
any;
(i) made loans or advances by the Company to any
of their employees, directors and/or officers;
(j) except
for that certain Contribution and Exchange Agreement, dated as of
the date hereof, by and between Bronco and the Company (the “
Contribution Agreement ”), entered into any
transaction with each of the Sellers, or other person whose capital
stock is owned, directly or indirectly, by any of the
Sellers;
(k) made or effect write off or write down of
any accounts receivable by the Company; or
(l) agreed, whether in writing or not, to do any
of the foregoing.
(a) The
Company has filed all tax returns (or such tax returns
have been filed on behalf of the Company) required to be filed by
applicable Law for taxable periods ending on or before the Closing
Date and have paid all taxes shown to be payable on such Tax
Returns.
(b) Set
forth on Schedule 4.9 is a complete list of the tax returns filed
by the Company pursuant to applicable Laws that during the
preceding year have been or are being audited by the appropriate
Governmental Body. All deficiencies proposed as a result
of such audits or reviews have been paid or finally settled or are
being contested in good faith, and, as of the date of this
Agreement, the Company has not received any written notice of any
other audits or investigations by any taxing authority in progress,
and the Company has not received any written notice from any taxing
authority that it intends to conduct such an audit or
investigation.
(c) As
of the date of this Agreement, the Company has not executed any
outstanding waivers or comparable consents regarding the
application of the statute of limitations with respect to any taxes
or tax returns.
(d) The
Company has not received written notice of any Liens for taxes on
the Assets of the Company.
(e) The
Company is not a party to any agreement providing for the
allocation or sharing of taxes.
4.10 Title to
Assets; Absence of Liens and Encumbrances, etc . The
Company has good, marketable and valid title to all of its Assets
reflected in the Financial Statements, free and clear of any and
all Liens; moreover, any and all of the Company Assets are set
forth in Schedule 4.10 hereof. The Assets constitute all
of the assets and properties used in or required for the
Company’s operation as presently conducted, including but not
limited to the operation and/or fulfillment of Pemex
Contract. The Assets are in good conditions, suitable
for their current use and consistent with the past use they have
been subject to in connection with the operation of the business of
the Company. To that end the Company does not own or
hold, and is not obligated under or is a party to, any option,
right of first refusal or other contractual right to purchase,
acquire, sell, assign or dispose of any real estate (if any) or any
portion thereof or interest therein related to any real property
(if any).
From December 31, 2008, and until the date of
this Agreement, Sellers have not received written notice from any
Governmental Body or from other person requiring or advising of the
need for any repair, alteration, restoration, improvement or
remedial action in connection with the Assets. The Company has
received no notice of any injunction, decree, order, writ or
judgment outstanding, nor any claims, litigation, administrative
actions or similar proceedings, pending or threatened, relating to
the ownership, or use of the Assets.
For purposes of this Agreement,
“Assets” shall mean, (i) all of the assets owned by the
Company, whether real, personal, tangible or intangible, including
but not limited to the land, buildings, structures and improvements
and any other real properties, and all rights and interests
thereto, owned, leased or occupied by the Company including the
assets reflected in the Financial Statements, which include the (6)
six land drilling rigs (the “ Rigs ”) and
related equipment (and any rights thereto) listed in Schedule
4.10(a) hereto, (ii) certain collection rights ( derechos de
cobro) and/or rights to the profits (or other arrangement as
agreed by the parties) pursuant to contracts to lease and maintain
certain drilling equipment for Pemex Exploración
Producción (the “ Pemex Contract ”) a
copy of which is attached hereto as Schedule 4.10(b), (iii) that
certain Master Services Agreement, dated as of August 5, 2009, by
and between the Company and Servicios Integrales GSM, S. de R.L. de
C.V., a copy of which are attached as Schedule 4.10(c) hereto, and
(iv) that certain Master Services Agreement, dated as of July 30,
2009, by and between the Company and Constructora y Perforadora
Latina, S.A. de C.V., a copy of which is attached as Schedule
4.10(d) hereto.
4.11 Intellectual
Property .
(a) Schedule 4.11 sets forth a
complete and correct list, as of the date of this Agreement, of the
Intellectual Property that is related to the
business. All Intellectual Property used or held by the
Company is owned by or licensed to the Company.
(b) The
Company has not received written notice of any actual or threatened
claims or demands of any person contesting the validity,
enforceability, use or ownership of any of the Intellectual
Property or pertaining to any Intellectual Property, and no
proceedings have been instituted or are pending or, threatened,
which challenge the rights of the Company to use the Intellectual
Property presently used or held by the Company. Neither the Sellers
nor the Company has received any written notices of any
infringement or misappropriation by, or conflict with, any person
with respect to the Intellectual Property, including any demand or
request that Sellers or the Company license rights from, or make
royalty payments to, any person, and neither the Sellers nor the
Company has infringed, misappropriated or otherwise conflicted with
any proprietary rights of any third parties.
For purposes of this Section 4.11, the term
“ Intellectual Property ” means all intellectual
property owned or used (as licensor or licensee) by Company in the
business, including (i) trade names, trademarks and service marks,
registered and unregistered, and applications thereof; (ii) all
patents, patent applications and inventions and discoveries that
may be patentable; (iii) all registered and unregistered copyrights
in both published works and unpublished works; (iv) all know-how,
trade secrets, confidential or proprietary information, customer
lists, software, technical information, data, process technology,
plans, drawings and blue prints; and (v) all rights in Internet web
sites and Internet domain names presently used by
Company.
4.12 Contracts .
Schedule 4.12 lists all of contracts and agreements to which the
Company is a party (the “ Contracts ”), except
for the agreements entered in the ordinary course of the business
and which annual payment is not in excess of US$250,000.00 and/or
which term is not more
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