Exhibit 10.2
ACQUISITION AGREEMENT
THIS AGREEMENT MADE THE 28th day of October, 1996.
AMONG:
RENE T. NUYTTEN, Businessman, of 4032
Glenview Crescent, North Vancouver,
British Columbia, V7R. 3G4
("Nuytten")
AND:
EDWARD G. HAUPTMANN, Businessman, of
3870 Sharon Drive, West Vancouver,
British Columbia, V7V 2N3
("Hauptmann")
AND:
DAVID S. PORTER, Businessman, of 8668 -
184th Street, Surrey, British Columbia,
V4N 3G3
("Porter")
AND:
HARD SUITS INC., a British Columbia
company, having its registered office at
2100 - 1111 West Georgia Street,
Vancouver, British Columbia, V7X 1K9
("Hard Suits")
AND:
AOD ACQUISITION CORP, a Yukon company
having an office at Suite 1500 - 885
West Georgia Street, Vancouver, British
Columbia, V6C 3E8
("AOD")
AND:
AMERICAN OILFIELD DIVERS, INC., a
Louisiana company having an office at
130 E. Kaliste Saloom Road, Lafayette,
Louisiana, 70508
("AOD Parent")
WHEREAS:
A. AOD has made an offer (the "Offer") to
purchase all of the issued and outstanding common shares ("Common
Shares") of Hard Suits at a price of Cdn. $1.65 per Common Share
pursuant to a take-over bid circular dated September 25, 1996 and a
notice of variation dated October 18, 1996;
B. Nuytten has concurrently herewith
entered into a Lock-up Agreement with AOD and AOD Parent (the "Lock-up
Agreement") under which he has agreed to tender all of his Common
Shares owned directly or indirectly by him (the "Subject Shares") of
Hard Suits pursuant to the Offer.
C. Each of Nuytten, Porter and Hauptmann is
a director of Hard Suits (the "Directors");
D. The parties wish to enter into this
Agreement to evidence their Agreement with respect to the matters set
forth herein;
NOW THEREFORE THIS AGREEMENT WITNESSES
that in consideration of the premises and the respective covenants and
agreements herein contained, the parties hereto covenant and agree as
follows:
1. TRANSITIONAL PROVISIONS
1.1 Upon Nuytten depositing the Subject
Shares under the Offer pursuant to the Lock-up Agreement:
(1) Nuytten will resign as a director and
officer of Hard Suits and of all corporate subsidiaries of Hard Suits
and will terminate his management agreement with such companies.
Hauptmann will resign as a director of Hard Suits;
(2) Porter as the continuing director of
Hard Suits, will appoint Rodney Stanley and Douglas Irwin directors of
Hard Suits and increase the permitted number of directors of Hard
Suits to four;
(3) AOD will use reasonable commercial
efforts to arrange sufficient debt or equity financing for Hard Suits
to permit Hard Suits to pay its existing bona fide liabilities in the
ordinary course of business, provided that Hard Suits represents that
such liabilities, inclusive of the accounts payable under section
1.1(5), do not exceed Cdn.$2,775,000.
(4) AOD will agree to advance or arrange for
third party financing to Hard Suits, as soon as reasonably possible
after the date hereof, and upon receipt of any required regulatory
approvals, for the purposes of providing Hard Suits with working
capital of Cdn.$500,000 (the "Working Capital Financing") on the terms
set forth in the term sheet attached as Schedule "A" hereto.
(5) AOD and AOD Parent hereby irrevocably
direct Price Waterhouse to advance, upon having been provided with a
copy of a receipt issued by The R-M Trust Company confirming the
deposit of the Subject Shares under the Offer, to Hard Suits the
Cdn.$1,000,000 (the "Completion Financing") held by them for the
account of AOD, as contemplated in the notice to be given pursuant to
section 1.2 of the Lock-up Agreement, such funds to be disbursed by
Price Waterhouse in the manner directed by Porter and Hauptmann to pay
the accrued liabilities and expenses of Hard Suits in such amounts and
to such persons as they may see fit (including payment of expenses
owing to Nuytten), upon receiving such verification as they may
reasonably deem sufficient from Price Waterhouse in connection
therewith. For greater clarity, the disbursement of any monies to
British Columbia Mercantile Corporation and Ventura Management Ltd.
under this section 1.1(5) is subject to British Columbia Mercantile
Corporation and Ventura Management Ltd. providing an acknowledgement
confirming that, upon payment by Hard Suits to them of not more than
Cdn.$270,000, Hard Suits is released from any and all further
obligations or liabilities to either of them, or their officers,
directors or shareholders; and
(6) Nuytten will, for himself and on behalf
of any company (collectively the "Nuytcos") directly or indirectly
controlled by him (including Nuytco Services Ltd. And Nuytco Research
Ltd.), assign, transfer, quit claim and release to Hard Suits all
right, title and interest held by Nuytten and the Nuytcos in all
technology and products now, or formerly, under development by or on
behalf of Hard Suits or any of its subsidiaries, in particular the
"Shallow Water NEWTSUIT(TM)", the "Remora", the NEWTSUIT(TM) and any
improvements thereon.
2. MUTUAL COOPERATION
2.1 The parties agree to provide each other
with such further documents, certificates or agreements as may be
reasonably requested by the other to better evidence and to give
effect to the transactions referred to herein.
2.2 Except as may be required by law, the
parties will refrain from making public comment on their discussions
and negotiations relating to the Offer and, in particular, refrain
from comment critical of, or tending to call into disrepute, the
actions taken by any of the other parties and, their respective
directors or officers.
3. GENERAL
3.1 Time
Time shall be of the essence of this
Agreement.
3.2 Notice
Any notice, document or communication
required or permitted to be given hereunder shall be in writing and
may be given by delivery by hand or by telecopier to the party to
which it is to be given as follows:
(a) if to Nuytten:
#3 - 1225 East Keith Road
North Vancouver, British Columbia
V7J 1J3
Attention: Mr. Rene T. Nuytten
Telecopier: (604) 988-3029
(b) if to Hard Suits:
Campney & Murphy
2100 - 1111 West Georgia Street
Vancouver, British Columbia
V7X 1K9
Attention: Mr. Paul C. MacNeill
Telecopier: (604) 688-0829
(c) if to AOD or AOD Parent:
130 E. Kaliste Saloom Road
Lafayette, Louisiana
70508
Attention: Mr. George Yax
Telecopier: (318) 232-7306
3.3 Governing Law
This Agreement and the rights and
obligations of the parties hereto shall be governed by and construed
and interpreted in accordance with the laws of the Province of British
Columbia and the laws of Canada applicable therein and each of the
parties hereto attorns to the exclusive jurisdiction of the courts of
such Province.
3.4 Expenses
Except as otherwise provided herein, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring
such expense and each of the parties agrees that except as disclosed
to the other parties hereto, it has not engaged any broker or finder
as to whom the other party would be liable for fees or other amounts.
3.5 Entire Agreement
This Agreement sets forth the entire
Agreement and understanding of the parties hereto in respect of the
transactions contemplated hereby. There are no warranties,
representations, terms, conditions or collateral Agreements,
expressed, implied or statutory, between any of the parties hereto
other than as expressly set forth in this Agreement, the Varied Offer
and the Lock-up Agreement.
3.6 Disclosure
The parties hereto agree not to disclose
or to divulge to any other person, other than their legal, financial
or other advisors, the terms and conditions hereof or of the
negotiations or other matters discussed between the parties prior to
the entering into of this agreement, except as may be required by
applicable law or pursuant to an order of a court or other competent
authority or as may be approved in writing by each of the parties,
acting reasonably.
IN WITNESS WHEREOF the parties hereto
have set their hands and corporate seals as of the date first above
written.
SIGNED, SEALED AND DELIVERED )
by RENE T. NUYTTEN )
in the presence of: )
)
)
__________________________________ ) ______________________________
Signature of Witness ) RENE T. NUYTTEN
)
Name: ____________________________ )
)
Address: _________________________ )
)
__________________________________ )
)
Occupation: ______________________ )
SIGNED, SEALED AND DELIVERED )
by EDWARD G. HAUPTMANN )
in the presence of: )
)
__________________________________ ) ______________________________
Signature of Witness ) EDWARD G. HAUPTMANN
)
Name: ____________________________ )
)
Address: _________________________ )
)
__________________________________ )
)
Occupation: ______________________ )
SIGNED, SEALED AND DELIVERED )
by DAVID S. PORTER )
in the presence of: )
)
__________________________________ ) ______________________________
Signature of Witness ) DAVID S. PORTER
)
Name: ____________________________ )
)
Address: _________________________ )
)
__________________________________ )
)
Occupation: ________________________ )
The CORPORATE SEAL of )
AOD ACQUISITION CORP. was )
hereunto affixed in the )
presence of: )
) c/s
__________________________________ )
)
__________________________________ )
The CORPORATE SEAL of )
HARD SUITS INC. was )
hereunto affixed in the )
presence of: )
) c/s
)
__________________________________ )
)
)
__________________________________ )
The CORPORATE SEAL of )
AMERICAN OILFIELD DIVERS, INC. )
was hereunto affixed in the )
presence of: )
) c/s
)
__________________________________ )
)
)
__________________________________ )
SCHEDULE A
FINANCING TERM SHEET
WORKING CAPITAL FINANCING
Amount - Cdn.$500,000.
Interest Rate - 8.5% per annum, calculated and payable monthly at the
end of each month.
Security - General Security Agreement in form satisfactory to AOD,
acting reasonably, constituting a first charge on all of the assets of
Hard Suits, subject only to a prior charge in favour of Federal
Business Development Bank in an amount not more than Cd.$30,000.
Payment - Principal due 6 months after the Expiry Date of the Varied
Offer, subject to earlier repayment upon the occurrence of events of
default set out in the General Security Agreement.
COMPLETION FINANCING
Amount - Cdn.$1,000,000.
Other Terms - same as for the Working Capital Financing.