Exhibit 10.1
MUTUAL TERMINATION AND RELEASE
AGREEMENT
This Mutual Termination and
Release Agreement, dated as of August 8, 2008 (this “Release
Agreement”), is by and among ALLIS-CHALMERS ENERGY INC., a
Delaware corporation (“Parent”), ELWAY MERGER SUB LLC,
a Delaware limited liability company (formerly known as Elway
Merger Sub, Inc.) 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, as amended by the First Amendment to
the Agreement and Plan of Merger dated as of June 1, 2008 (the
“Merger Agreement”), providing for the merger of the
Company with and into Merger Sub, with Merger Sub surviving (the
“Merger”);
WHEREAS, each Party has
determined that (i) it is unlikely that the Merger Agreement will
be adopted by the requisite vote of stockholders of the Company and
(ii) that it is advisable and in the best interests of each Party
to terminate the Merger Agreement and provide for the compromise
and settlement of any and all potential claims among the Parties
thereunder;
NOW, THEREFORE, for and in
consideration of the recitals and the mutual covenants and
agreements set forth in this Release Agreement, the Parties agree
as follows:
Article 1
Definitions
Section 1.1 Defined
Terms . As used in this Release Agreement,
capitalized terms shall have the meanings set forth below or shall
have the meanings set forth for such terms in the sections of this
Release Agreement referenced below:
“Affiliate”
means, with respect to any Person, each other Person that directly
or indirectly Controls, is Controlled by, or is under common
Control with such Person.
“Claim” means any
and all manner of claims, rights, actions, losses, judgments,
damages, causes of action, suits, liens, obligations, accounts,
debts, demands, agreements, promises, liabilities, controversies,
costs, expenses and fees (including attorney’s, financial
advisor’s, lender’s or other fees) whatsoever, whether
arising in law or equity, whether based on any federal, state or
foreign law or right of action, mature or unmature, contingent or
fixed, liquidated or unliquidated, known or unknown, suspected or
unsuspected, accrued or unaccrued, that now exist, may exist or
heretofore have existed.
“Company” has the
meaning given to such term in the preamble.
“Confidentiality
Agreement” means the Amended and Restated Confidentiality
Agreement, dated as of December 24, 2007, between the Company and
Parent.
“Control” (and
related terms) means the possession, directly or indirectly, of the
power to direct or cause the direction of the management policies
of a Person, whether through the ownership of stock, by contract,
credit arrangement or otherwise.
“Effective Date”
has the meaning given to such term in Section 2.4.
“Merger” has the
meaning given to such term in the Recitals.
“Merger Sub” has
the meaning given to such term in the preamble.
“Parent” has the
meaning given to such term in the preamble.
“Parties” has the
meaning given to such term in the Recitals.
“Party” has the
meaning given to such term in the Recitals.
“Person” means
any natural person, corporation, company, limited or general
partnership, joint stock company, joint venture, association,
limited liability company, trust, bank, trust company, land trust,
business trust or other entity or organization, regardless of
whether a Governmental Authority.
“Release
Agreement” has the meaning given to such term in the
preamble.
“Release Payment”
has the meaning given to such term in Section 2.1.
“Released
Parties” has the meaning given to such term in Section
2.2(b).
“Releasing
Parties” has the meaning given to such term in Section
2.2(b).
“Subject Matter”
means any arrangement, contract, interest, right, matter,
obligation, Claim or thing whatsoever from the beginning of the
world to the Effective Date in connection with, arising as a result
of or in any way relating, directly or indirectly, to the Merger
Agreement and any other documents or transactions contemplated
thereby or referred to therein (including without limitation the
Merger) or any action taken, omitted to be taken, or attempted to
be taken in connection therewith; provided, however , that
“Subject Matter” shall not include the obligations of
any Person arising solely under the Confidentiality
Agreement.
Section 1.2 References,
Construction and Titles .
(a) All references in
this Release Agreement to Exhibits, Schedules, Articles, Sections,
subsections and other subdivisions refer to the corresponding
Exhibits, Schedules, Articles, Sections, subsections and other
subdivisions of or to this Release Agreement, unless expressly
provided otherwise. Titles appearing at the beginning of
any Articles, Sections, subsections or other subdivisions of this
Release Agreement are for convenience only, do not constitute any
part of this Release Agreement, and shall be disregarded in
construing the language hereof. The words “this
Release Agreement,” “herein,”
“hereby,” “hereunder” and
“hereof,” and words of similar import, refer to this
Release Agreement as a whole and not to any particular Article,
Section, subsection or subdivision unless expressly so
limited. The words “this Article” and
“this Section,” and words of similar import, refer only
to the Article or Section hereof in which such words
occur.
(b) The word
“or” is not exclusive, and the word
“including” (in its various forms) means including
without limitation. Pronouns in masculine, feminine or
neuter genders shall be construed to state and include any other
gender, and words, terms and titles (including terms defined
herein) in the singular form shall be construed to include the
plural and vice versa, unless the context otherwise
requires.
Article 2
Mutual Release and
Indemnification
Section 2.1 Release
Payment . Promptly after (and in any event on or
before the first business day following) the execution and delivery
of this Release Agreement, the Company shall pay to Parent an
amount of cash equal to FOUR MILLION FIVE HUNDRED THOUSAND DOLLARS
(US $4,500,000.00) in the legal and lawful currency of the United
States of America (the “Release Payment”) by wire
transfer of immediately available funds in accordance with the wire
transfer instructions provided by Parent to the Company.
Section 2.2 Termination and
Mutual Release .
(a) As of the
Effective Date, the Merger Agreement and all agreements
contemplated thereby (with the sole exception of the
Confidentiality Agreement) shall be terminated, without any other
action being required on the part of any Party, including without
limitation, provisions of the Merger Agreement that by their terms
would otherwise have survived the termination of the Merger
Agreement. Upon such termination, the Merger Agreement
shall be null and the provisions thereof shall be void and shall
have no force and effect whatsoever, and no Party shall have any
rights or obligations thereunder.
(b) Each of the
Parties, on behalf of itself and its present, future and former
officers, directors, employees, managers, advisors, stockholders,
members, managers, agents, representatives, trust beneficiaries,
heirs, attorneys, parents, subsidiaries, Affiliates and financing
sources and
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